Minutes of Zoning Board of Appeals 40B Work Shop and Public Meeting
Date: May 28, 2009
Time: 6:00 PM
Location: Wellfleet Sr. Center
Attendees: Vernon Jacob, Bruce Drucker, William Nicholson, Robert Hankey, Manny Heyliger, Roger Putnam, Tom Reinhart, Sibel Asantugrul, Donald Palladino and Christine Bates, Committee Secretary.
Chair Jacob opened the workshop at 6:05 p.m. and Town Counsel provided a 40B seminar.
Chair Jacob opened the regular meeting at 7:00 pm and gave an overview of the procedures of the public hearings.
The Board received a request from Town Counsel to sign the Joint Dismissal paperwork for the Frank Caulfield vs ZBA case. Bruce Drucker moved to approve the dismissal and have Town Counsel sign on behalf of the ZBA; seconded by Roger Putnam; passed 9-0.
Roger Putnam moved to approve the April 23, 2009 meeting minutes as amended; seconded by Bruce Drucker; passed 5-0.
Public Hearings:
7:03 pm
09-16 Edwards, 1562 State Highway, Map 30, Parcel 31: Application for a Special Permit under WZB 5.4.13 to convert second floor office and conference area to a residential area.
(Cont’d from 05/14/09). The Board consisted of Vernon Jacob, Bruce Drucker, William Nicholson, Robert Hankey and Manny Heyliger. Tom Edwards stated he received approval of the landscaping plan from the Building Inspector and anticipates completion of the work in approximately two to three weeks. Paul Murphy, Building Inspector, stated he is satisfied with the landscaping plan and will monitor the project. Edwards stated he wants to convert the second floor into a residential area with one living unit. He stated this would also eliminate some of the vandalism that is taking place on his property. Paul Murphy stated after the permit is granted Edwards will go to the Health Department. Vernon Jacob moved for Findings of Fact:
1. This is an application under Wellfleet Zoning By-law section 5.13 to convert a second-floor office and conference area to a residential dwelling area.
2. The Board has made a site visit to the property.
3. They property is a commercial nursery and office pursuant to Special Permit 05- 21 issued on June 17, 2004.
4. A residential dwelling is a permitted use in the commercial district pursuant to Wellfleet Zoning By-law section 5.3.1.
5. There are no objections from abutters.
6. The proposed dwelling is consistent with the district objectives and is not detrimental to the neighborhood.
7. There will be no change to the exterior structure.
Robert Hankey moved to approve the Findings of Fact; seconded by Manny Heyliger; passed 5-0.
Based upon the foregoing Findings of Fact, Robert Hankey moved to grant the Special Permit with conditions; seconded by William Nicholson; passed 5-0.
1. The septic system is required to meet the applicable Title V standards and shall be reviewed and approved by the Wellfleet Health Agent prior to the issuance of a building permit for the dwelling.
1. The Applicant shall obtain a Certificate of Occupancy from the Wellfleet Building Inspector prior to the dwelling being occupied and used.
2. The Applicant shall complete the landscape plan submitted to the Board prior to the issuance of a Certificate of Occupancy by the Wellfleet Building Inspector.
PersonName7:20 pm
09-13 Risha, LLC (Doris Zelinsky, owner), 170 Pond Avenue, Map 29, Parcel 382: Application for a 40B Comprehensive Permit to build three townhouse condominium homeownership units under MA General Laws Chapter 40B and 760 CMR 56.
(Cont’d from 04/09/09). The public hearing notice was read to open the continued publicl hearing.
Members Don Palladino, Manny Heyliger, and Robert Hankey did not participate in the hearing. The same Board presided as at the prior public hearing session, including Members Vernon Jacob, Bruce Drucker, William Nicholson, Tom Reinhart and Roger Putnam.
The Applicant’s counsel, Attorney Robert Devin, made a presentation and stated the Conservation Commission approved the Notice of Intent and issued Orders of Condition after Natural Heritage stated there was no taking. The issue of Open Space was again addressed and the need for affordable housing in the Town of Wellfleet. Attorney Devin stated the Zelinsky’s purchased the property in 1986 and to date, no one has come forward to acquire the property for open space. Attorney Devin did a title search regarding the walking path and he stated there is nothing on record and because it is private property, no one should walk over the property. He gave a twenty three (23) year history of rights regarding the walking path and to date, no one has filed a claim for prescriptive
right, alleging they have authority to use the path, although there is a three year time period to file paperwork in the court system each time an owner files a Notice to Prevent Acquisition of Easement. Attorney Devin addressed the remaining issues raised by counsel for the neighborhood association, Attorney Bruce Bierhans, in the previous meeting. Attorney Devin stated an appraisal of the land value was performed by an independent appraiser based on MASS Housing regulations.
Attorney Devin agreed that, as a condition of any approval, the fence at the property shall be removed and no signage or fence will replace it. He stated that the applicant probably would have no objection to agreeing to remove the carports so long as no other conditions that rendered the project uneconomic were added. He agreed to a condition of approval that there shall be no vinyl siding at the property and that the exterior shall be shingle or clapboard. He thought that a condition of approval to restrict the property so that no impervious surface in the future could be added would be acceptable.
Chair Jacob closed the discussion to the applicant and requested the Board’s input. The Board requested Attorney Devin approach the applicant and ask if the carports could be removed which would create more space for the property as well as providing further turning radius. There was discussion regarding the proposed height of the buildings at
32’ 4”, when 28’ is what is allowed as of right. The Board requested Attorney Devin to ask the architect if the height of the buildings could be lowered. Attorney Devin stated the construction will comply with State Building and Fire Code requirements and felt some of the requests made by the Fire Chief were inappropriate. Member Bruce Drucker suggested Tim Brady meet with the Fire Chief for clarification of the Chief’s requests. Member Drucker asked about Delany Builders’ experience to build the proposed development. Attorney Devin stated MassHousing vetted their qualifications and issued a site approval letter because Delany is qualified. MassHousing stated the project will be closely monitored. Attorney Devin stated the
Purchase Agreement should be dated April 9, 2009. He stated there are no future plans for decking and the crawl space will not be converted to habitable space. He indicated that he did not think that a restrictive covenant on no increase in impervious surface would be a problem. The 40B unit does not have to be handicapped accessible.
Attorneys Bierhans and Olivier Kozlowski came to the table and provided a map identifying the open space in the vicinity of Drummer Cove. Attorney Bierhans identified the only break in the walking trail around the Cove is the Zelinsky property. Attorney Bierhans stated attempts were made by the Conservation Trust and the abutters to purchase the land in 2006. Attorney Bierhans stated the issue of fire safety and access is a major concern. He also stated there is conflict with the Conservation Commission regarding the “pre-construction condition”. He feels the Board should require the applicant pay for a consultant to resolve the issue of the road, the design of the dwellings, environmental issues, safety, etc. Cove Road may be inadequate to support
the development. He also suggested the applicant pay for the improvement of the road, should that be required. He referred to several denials of 40B. Attorney Kozlowski stated there are plans from 1971 which identify the path prior to the division of the property.
Attorney Ilana Quirk, Town Counsel, opined that there has to be a final adjudication from a court of competent jurisdiction in order to perfect prescriptive rights and there is no evidence that has been done regarding the path and the asserted rights of passage over it. She opined that the open space that a board can require in a 40B developmenet refers to the space on the property for the residents. Member Sibel asked if the neighbors would be willing to purchase the property now and Devin responded that there would need to be a specific offer and he stated that, to date, his client has not received such an offer.
Attorney Quirk stated if there is a conflict between the Fire Chief’s requests and the Conservation Commission Order of Conditions, the ZBA has the authority to impose conditions under its jurisdiction and then it would be up to the applicant to reconcile any conflict in the conditions. Ralph Wilmer stated it may be premature to hire a consultant because the issues may be reconciled with the Fire Chief and recommends conversations take place.
Attorney Quirk, Town Counsel, stated the open space issues will be addressed by Attorney Bierhans. She requested Attorney Devin provide information on Delaney Builders and the compatibility of the neighborhood regarding height issues and provide elevations. Bruce Drucker would like the architect at the meeting. She stated site control is the issue of MassHousing under 760 CMR 56.04(4) and (6) in rendering the Project Eligibility Letter and the letter is definitive. She also opined that Fire Safety issues should be reviewed with the Chief and reasonable conditions to protect health, safety and welfare could be imposed. Again, the applicant would need to resolve any conflicts regarding conditions.
Break at 8:30 pm; reconvened at 8:45 pm.
The meeting was reopened to the public at 8:45 pm. Chair Jacob requested no repeat statements. Jan Plaue, vice chair of the Open Space committee, stated the property was identified by them and stated that any property that comes on the market within the ACEC is of interest to them to purchase. She stated the Conservation Trust made an offer to the Zelinsky’s and it was not received well. Barbara Gray, member of the Preservation Committee, stated documents were submitted regarding the purchase of the property but was withdrawn due to communication problems. Jeffrey Stewart, stated the builder and architect should be encouraged to come to the next meeting and made suggestions on resolving some of the issues. Mr. Jackson, member of the Open Space Committee, stated
for a number of months this was a regularly scheduled item on their agenda and the issue of the path came before the Selectmen to keep it open path for the public. Attorney Devin stated that he would review with the Applicant whether there is a willingness to provide an easement to the Town to complete the foot path.
The Board identified the following action items for the June 15, 2009 meeting
1. Attorney Devin to supply information on Delany Builders.
2. Attorney Devin to confirm whether the applicant will eliminate the car ports.
3. Attorney Devin to confirm that the fence will be eliminated and no future signage.
4. Attorney Devin will advise applicant’s position on giving an easement to maintain a continuous footpath.
5. The architect is to provide new drawings showing maximum height of 28 feet (or explain why not) and the architect is to appear at the next meeting.
6. Engineer Tim Brady will provide upland building lot calculations.
7. Engineer Tim Brady is to meet with the Fire Chief regarding the Chief’s memo.
8. Chairman Jacob will call Fire Chief Silverman to advise of Brady’s contact and to invite him to the June 15 hearing.
9. Attorney Bierhans will provide any available information on Open Space.
10. All additional materials will be provided to the Board at least one week in advance of the PersonNameJune 15, 2009 meeting.
William Nicholson moved to continue to June 15, 2009 at 7:00 pm ; seconded by Tom Reinhart; passed 5-0.
Other Business
William Nicholson moved to adjourn at 9:40 pm; seconded by Bruce Drucker; passed 5-0.
Respectfully submitted,
Christine Bates, Committee Secretary
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