APPROVED
Minutes of Zoning Board of Appeals Public Meeting
Date: October 23, 2008
Time: 7:00 PM
Attendees: Chair Vern Jacob, Robert Hankey, Roger Putnam, William Nicholson, Don Palladino, Manny Heyliger, Tom Reinhart, and Christine Bates, Committee Secretary.
Regrets: Bruce Drucker
Chair Vern Jacob opened the meeting at 7:00 pm. and informed the applicants and audience the procedures for the hearings.
Public Hearings:
08-30 Toni Athans, 70 Commercial St., Map 21, Parcel 70: Application for a Special Permit under WZB 6.1 to build a 10’ x 16’ deck from bedroom (Cont’d from 9/25/08). The Board consisted of Vern Jacob, William Nicholson, Robert Hankey, Manny Heyliger and Tom Reinhart replacing Bruce Drucker. The applicant spoke with the Historical Review Board as requested and Paul Murphy, Building Inspector, stated there were no issues. Dave Pike, the contractor, stated he could wrap the pillars with white coating. Jerry Houck objected to a deck being on the side of the house and is concerned other owners may want to
put decking on their units. He feels it will take away from the integrity of the neighborhood and the house. Vern Jacob read the minutes of 9/25/08 into the record. The Board discussed the issues of integrity to the neighborhood and the building. Ms. Athans requested to withdraw the application without prejudice. Robert Hankey moved to allow the applicant to withdraw without prejudice; seconded by William Nicholson; passed 5-0.
7:25 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 9/11/08). Vern Jacob read the meeting minutes of 8/28/08. The Board consisted of Vern Jacob, William Nicholson, Robert Hankey, Manny Heyliger and Roger Putnam replacing Bruce Drucker. Vern Jacob read into the record Finding 11 which was provided by Bruce Drucker:
Based on all the evidence, including, without limitation, the testimony, the letters, the photographs, the Board’s site inspection of 5 Pinecrest Way, the Board’s knowledge of the neighborhood and local conditions, the commercial storage of more than the six boats stored by the Harrington’s at 5 Pinecrest Way is a “substantial extension of such use…” within the meaning of MGL Chapter 40A Section 6.
Discussion took place among the Board trying to determine a set number of boats for storage. Both attorneys stated they could not arrive at an acceptable number of boats. The attorneys were asked again if they could arrive at a mutually acceptable limit on the number of boats stored at 5 Pinecrest Way. They replied that they could not. The Board then discussed setting an arbitrary limit on the number of boats stored and/or the limits in size of boats store at 5 Pinecrest Way. The Board agreed that a fifteen (15) foot set back from all lot lines and no stacking would allow the owners to use the property and would mitigate some of the complainant’s
issues. A Pickard stated that he “could live with those limitations”. Attorney riley stated the application had two parts which was to appeal the Building Inspector and for the Board to determine the use of the property in 1966 versus what is the use today.
Vern Jacob read the previous Findings of Fact from the September 11, 2008 hearing.
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.
3. 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.
11. That the present use is a “substantial extension of the use as first used by the Harrington’s prior to the adoption of the present Zoning Bylaw in 1966.
Roger Putnam moved the Findings of Fact (including those read into the record from the 8/28/08 hearing); seconded by Robert Hankey; passed 5-0.
Vern Jacob moved that based upon the Findings of Fact (1) the decision of the Building Inspector as stated in his 5/16/08 letter from which Judith Ball appealed is partially affirmed in so far as the Building Inspector found that the commercial storage of boats at 5 Pinecrest Way with no stacking is a lawful use predating the adoption of the applicable zoning by-law; (2) the Building Inspector’s decision is modified by holding that the commercial storage of boats be within a 15 foot setback around the property at 5 Pinecrest Way is a “substantial extension of such use.” within the meaning of MGL Chapter 40A Section 6 the adoption of
the applicable zoning bylaw.
Seconded by Roger Putnam; passed 5-0. Condition set on 5 Pinecrest Way: Commercial storage of boats be within a 15 foot setback and there shall be no stacking of boats.
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7:48 pm
08-29 Jeff Zinn (What), 15 Kendrick Ave., Map 21, Parcel 111: Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) request building permit for proposed inside renovations (Cont’d from 9/25/08). The Board consisted of Vern Jacob, William Nicholson, Robert, Hankey, Manny Heyliger and Don Palladino replacing Bruce Drucker. Vern Jacob read the meeting minutes of 9/25/08 into the record. Jeff Zinn requested to withdraw this appeal without prejudice. William Nicholson moved to allow the applicant to withdraw without prejudice; seconded by Robert Hankey; passed 5-0.
7:48 pm
08-38 Jeff Zinn (What), 15 Kendrick Ave., Map 21, Parcel 111: Application for a Special Permit under WZB 5.3.2 for interior renovations from fixed seating theater to flexible seating theater. .The Board consisted of Vern Jacob, William Nicholson, Robert Hankey, Manny Heyliger and Don Palladino. Jeff Zinn gave an overview of the project, stating he wanted to create flexibility for arrangements and seating for the theater. There will be no increase in use and no change to the outside of the building. Paul Murphy stated he believed it moved away from a traditional atmosphere of a theater and did not feel he could issue a permit. Zinn stated their intention is
to put on plays and give them the flexibility of moving the area around and the use will not change. Manny Heyliger, Vern Jacob and Roger Putnam acknowledged they have donated funding to WHAT.
Vern Jacob moved for Findings of Fact:
1. There is no change in use.
2. No change in the number of seats
3. No change in licensing for food and beverages
4. No change in the structure of the building.
5. All changes will be in the interior of the building.
6. There was no objection from abutters.
Robert Hankey moved the Findings of Fact; seconded by Don Palladino; passed 5-0
Don Palladino moved to approve the Special Permit based on the Findings of Fact; seconded by PersonNameWilliam Nicholson; passed 5-0.
timeHour20Minute08:00 pm
04-22 Charles Amsler, 2520 Route 6, Map 23, Parcel 34: Request for two year extension to Special Permit 04-22 ): Change the use of property from a real estate office to business offices and retail use. Vern Jacob recused himself. The Board consisted of William Nicholson, Robert Hankey, Manny Heyliger, Roger Putnam and Don Palladino. Amsler stated due to the economic situation, no one has offered to lease or buy the property. He stated he has done a lot of work on the property including the installation of a well, the grounds have been hardened and shelled, the embankment has been done according to the conditions, fencing has
been placed on the perimeter, and several plantings have been placed on the property. Nancy Cook, abutter, stated they appreciate the improvements to the property. She was told the original conditions were still valid. Don Palladino stated the expiration of the current permit was 10/22/08 but the filing date for the extension was 9/23/08 so it would be valid. PersonNameWilliam Nicholson moved for Findings Fact:
1) The application was filed on 9/23/08 and the current permit expired on 10/22/08.
Don Palladino moved to approve the Findings of Fact; seconded by Manny Heyliger; passed 5-0. Roger Putnam moved to approve the two year extension with the condition the Findings of Fact and Conditions listed in Application 04-22 issued on October 1, 2004 still apply to the property; seconded by Robert Hankey; passed 5-0.
8:14 pm
08-21 Alan Michelson, addressStreet21 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 9/25/08). The Board consisted of Vern Jacob, PersonNameWilliam Nicholson, Roger Putnam, Don Palladino replacing Bruce Drucker, and Manny Heyliger. Chair Jacob read the meeting minutes of dateMonth9Day25Year20089/25/08 into the record. Attorney Ben Zehnder stating the dwelling was reduced in size and the height of
the dwelling was reduced approximately 5 feet. Zehnder provided detailed lot coverage and habitable area. A letter dated 10/21/08 from Wallace A. Pattyson supported the project. The Board commended Mr. Michelson on accommodating the Board and respecting the ethos of the neighborhood. Vern Jacob moved for Findings of Fact:
1. This is a preexisting nonconforming lot.
2. The project has been approved by the Conservation Commission
3. Every effort has been made to keep the dwelling in conformity with the neighborhood
4. There were no objections from abutters.
5. There will be no change in use.
6. The lot coverage is 8.2%.
7. The site coverage is 1,766 sq. ft.
8. This project will not be more substantially detrimental to the neighborhood.
Roger Putnam moved the Findings of Fact; seconded by Manny Heyliger; passed 5-0.
Roger Putnam moved the Special Permit based on the Findings of Fact; seconded by Don Palladino; passed 5-0.
8:28 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. (Cont’d from 9/25/08). Manny Heyliger recused himself. The Board consisted of Vern Putnam, Robert Hankey, William Nicholson, Tom Reinhart and Roger Putnam replacing Bruce Drucker. Chair Jacob read the 9/25/08 meeting minutes into the record. Attorney Ben Zehnder stated the one issue the Board had was the impact of the view for the abutter
behind the property. The new plan shifts the house approximately 20 feet to the south. The letter from the National Seashore dated 9/23/08 was read into the record, objecting to the project. A letter from Melinda Krasting was read into the record, expressing her concerns. A letter from Clair Capwell, abutter, was read into the record. From the audience, Jeff Stewart reviewed Bylaw 8.4.2. Abutter Kathleen Robinson stated she and her son feel the proposed location of the house would still obstruct their views. Zehnder gave the dimensions of the habitable space and stated the moving of the dwelling is being done to satisfy both abutters (Krasting and Robinson) regarding their views and vistas. There was discussion regarding the National Seashore and Paul Murphy stated he is, at this point, enforcing the zoning bylaws as they are amicable on this date. Zehnder stated under the proposed Planning Board Bylaw change, this
project would not trigger review. Under the proposed Selectmen’s bylaw change, it would trigger a requirement for a Special Permit.
The Board discussed the increase in habitable space, revegation, excavating the basement area so as not to expose the house from addressStreetNorth Circuit Road, the access for construction, the height of the roofline, reducing the elevation of sunroom and the fragile walkway to the beach. The applicant requested a continuation. Roger Putnam moved to continue to 11/13/08; seconded by Tom Reinhart; passed 5-0.
9:30 pm
08-32 Edward Simpson, 780 Ocean View Drive, Map 17, Parcel 3: Application for a Special Permit under WZB 6.1.5 to relocate pre-existing structure due to erosion of the coastal bank and add a full foundation with a full bath and one bedroom The Board consisted of Vern Drucker, William Nicholson, Robert Hankey, Manny Heyliger and Don Palladino. Simpson gave an overview of the project, stating he had a discussion with the placeCape Cod National Seashore and they were able to reach an agreement. From the audience, Jeff Stewart stated he had a concern with a walkout basement and adding a bedroom and bath. Simpson stated he had
been approved for a four (4) bedroom septic, which has been installed, and felt the addition of the bedroom in the basement was less intrusive than adding an addition to the dwelling. Jacob read a letter from the National Seashore dated 10/20/08 supporting the project. Discussion took place regarding retaining walls on the back side of the house, covering the exposed cement with materials, height of the basement, elevation of the property and revegetation. The Board requested the applicant supply engineered plans identifying height elevations and to lower the foundation. Simpson stated the coastal erosion has been 30’ in 10 years. The house has been listed for sale and will continue to be listed for sale. Vern Jacob moved to continue to January 8, 2009; seconded by William Nicholson, passed 5-0. .
Other Business
Manny Heyliger moved to adjourn at 10:10 pm; seconded by Robert Hankey; passed 5-0.
Respectfully submitted,
Christine A. Bates
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