Minutes of Zoning Board of Appeals Public Meeting
Date: June 15, 2009
Time: 7:00 PM
Location: Wellfleet PlaceNameSr. PlaceTypeCenter
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 meeting at 7:00 pm and gave an overview of the procedures of the public hearings.
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.
(Public Hearing Continued from 5/28/09). Members Don Palladino, Manny Heyliger, and Robert Hankey did not participate in the hearing.
The same Board members presided as at the prior public hearing sessions, including Members Vernon Jacob, Bruce Drucker, William Nicholson, Tom Reinhart and Roger Putnam. Member Sibel Asantugrul participated in the hearing.
Member Bruce Drucker introduced members of the Board, Christine Bates and Attorney Ilana Quirk, Town Counsel, as well as Ralph Willmer. Member Drucker gave an overview of what a 40B comprehensive permit application is and noted that a majority vote is required for approval and that, if there is an appeal by the applicant, it would be to the Housing Appeals Committee.
Attorney Quirk explained the differences between a 40A variance or special permit application and a 40B comprehensive permit application. She explained that the burden would be on the Town if the ZBA denied the application or imposed conditions that the applicant asserts would make the project uneconomic.
Member Drucker gave an overview of what the previous public hearing sessions covered, including Attorney Bruce Bierhan’s concerns with open space and safety.
Fire Chief Silverman stated that he met with the applicant’s engineer, Tim Brady, along with Health and Conservation Agent Hillary Greenberg. The Chief’s concerns regarding whether the roadway would bear the weight of emergency vehicles have been resolved. The roadway must be hardened to an H20 Standard (the State Highway Code) and the SAS must be pervious, but also must be hardened, either with shells or stone. The Chief noted that the site is still very tight for emergency vehicles and parking of vehicles for the residences must be restricted, particularly as to guests.
The Fire Chief stated that he wants to see the following conditions:
1) Hardening of the roadway to an H20 Standard;
2) Clearing of the roadway to a 12-foot width, as to trees, and a 14-foot width as to brush and with this level of clearing to be maintained to allow a 14-foot width x14-foot height access standard;
3) Clearing around the dwellings to allow 360 degree access in emergencies on foot;
4) Hardening of the area over the SAS with shells or stone;
5) Sprinklers (egress only system) in all three dwellings, supported by water tanks;
6) Water tanks with 10,000 gallons above code as the site is so tight and the water supply is an issue and there should be sufficient water on site in the tanks to allow the sprinklers to run for 20 minutes and then provide a ten minute supply for the fire department;
7) Restrictions on guest parking on site to allow emergency vehicles access; and
8) Redesign the windows so that fire cannot spread from a roof through a window or hamper egress or rescue through the windows.
Engineer Tim Brady stated he has revised the plans (as shown on the June 5, 2009 revised plan submitted to the Board) to:
(1) Decrease the staggering between the buildings, making the units closer by 8 feet;
(2) Lower the foundations, reducing the height of the buildings; and
(3) Remove the carports, to provide for increased maneuvering for emergency vehicles.
The Fire Chief noted and the Applicant’s Engineer agreed that each of the three dwellings shall be provided with sprinklers (an egress only system), as required under the 7th edition of the State Building Code, with water tanks. The type of system proposed will not knock down a fire, only provide time for residences to exit and for the fire department to arrive.
Engineer Tim Brady stated Hillary Greenberg approved a clearing behind the buildings in the event the Fire Department personnel required access to the units.
Fire Chief Silverman stated he would like to have two holding tanks for water for handling fire flow and establishing a water supply. The Chief wants at least 10,000 gallons above code to be provided as the site is a long way from the fire station and any source of water. The Chief wants a 15,000 to 20,000 gallon cistern. The sprinklers need to have water sufficient for 20 minutes of flow and then at least 10 minutes of flow when emergency vehicles arrive. Engineer Brady disagreed with the Chief’s water tank supply recommendation. Engineer Brady stated that the extra supply would not be necessary and it would be expensive. Engineer Brady stated the size of the water tank should be determined by the water sprinkler designer.
Chief Silverman stated he would like to have the road cleared and brushed to a 14 foot width and 14 foot height to allow fire trucks passage. He requested 10 to 12 feet road width with additional clearing of 14 feet. Engineer Brady stated Agent Greenberg agreed that there could be an amendment to the Conservation Commission Order of Conditions.
Attorney Devin referred to the draft meeting minutes of 5/28/09 and the requests of the Board. He stated the carports will be eliminated and the fencing will be eliminated if the project goes forth. He stated he misinterpreted the request for the walking path easement and he asked his clients if people could walk on the upper level of the property to which they said no. He stated the architect was unavailable to come to the meeting, but had reduced the height of the buildings. The client has also agreed to put wood shingles or wood on the exterior. Due to regrading, the foundation will not be as visible and the client has agreed to vegetative plantings. Engineer Brady stated the building footprint is 8.9% lot coverage, and the upland lot coverage will be 9.1%.
Attorney Bierhans, representing the neighborhood association, raised the following issues.
1) Elimination of the carports. (The applicant has agreed to this.)
2) Elimination of fencing. (The applicant has agreed to this.)
3) Provide a pedestrian easement. (The applicant’s counsel stated that this could be provided.)
4) Reduce the height of the buildings to 28 feet.
5) Prohibit vinyl siding and require wood or clapboard siding.
6) Reduce exposed concrete for the foundations.
7) Reduce the lot coverage further.
8) The accuracy of the appraisal relied upon by MassHousing as it was based upon an assumption that the project was a building lot.
Attorney Bierhans referred to articles written about 40 B’s being scams in the State. He feels the appraisal is inaccurate because it was performed in 2008 when there were still legal issues going on in the Court system. He feels the value of the property is over-inflated. He requested the ZBA to have Mass Housing review the appraisal again since the property has been declared unbuildable two times in court. Attorney Quirk stated project eligibility is for the subsidizing agency to determine, and it is normally considered conclusive. She discussed the distribution of any excess money and that it would go back to the town or through a state project. There was discussion regarding the Inspector General’s articles. Attorney Devin stated the Town of Wellfleet has assessed
the property at $350,000+, and Mass Housing determined who the appraiser would be. Attorney Quirk stated Mass Housing usually responds to inquiries within 10 days and reiterated that Mass Housing already has determined this is a viable project.
Member Tom Reinhart requested a letter be sent to Mass Housing regarding the assessment and wanted to go on record stating he does not feel the one affordable unit warrants the open space issue, the profitability for the owners and the size of the project on this parcel. Attorney Quirk stated the Town would monitor of the profitability. Attorney Devlin stated the projected profit on the unit would be 12.3%.
Chair Jacob opened the meeting to the audience at 7:55 p.m.
Jeffrey Stuart encouraged the board to hold to the 28’ height. Chair Jacob thanked the Open Space committee for sending copies of their correspondence regarding purchasing the property.
The Board discussed the easement for the walking path, reducing the height of the buildings to 28 feet, and vegetative plantings around the foundations. Attorney Devin stated if the walking path is the only obstacle for the granting of the 40B, he will guarantee the walking easement. He originally thought that the walking path requested was behind the dwellings and realizes now that it is the path that exists now that is between the proposed location for the dwellings and the water. He thinks this can be provided.
Attorney Beirhans reported the Association has appealed the Conservation Commission decision and a site visit is scheduled for June 25, 2009 with DEP. After the site visit, DEP may make a determination regarding the appeal. Attorney Quirk stated the Conservation Commission appeal will not affect the ZBA decision.
Attorney Beirhans stated he did not feel the ZBA adequately addressed his clients concerns. Attorney Quirk stated she typically puts together an alternative draft decision which will be distributed to all attorneys.
Chair Jacob recommended listing the action items as well as concerns for the next meeting:
1. Legal Issues regarding the appraisal – Attorney Quirk will write a letter.
2. Site Planning – height of building to 28’
3. Walking path easement
4. Are there any precedents regarding an unbuildable lot, and Attorney Quirk stated very few denials have been upheld due to safety, health or people’s welfare.
5. Does it matter if the Footprint is within the coastal zone?
6. The ZBA has the option to invite other boards to our meeting for information.
7. Water tank, one or two.
8. Safety of road.
9. Town Counsel will circulate a draft decision by July 3, 2009.
Attorney Bierhans questioned the Preservation of Open Space versus one unit. He mentioned the long term Comprehensive Plan of property on Drummers Cove. Attorney Quirk stated in a 40B application, open space is what is on the parcel in question.
Member Putnam moved to continue to July 9, 2009 at 7:00 pm; seconded by Member Drucker and the motion was approved 5-0.
Member Drucker noted that the Planning Board, DPW, Police and Board of Health reported no problems with the project regarding health, safety or welfare situations.
Member Putnam moved to adjourn at 9:10 pm; seconded by Member Drucker and the motion was approved 5-0.
Respectfully submitted,
Christine Bates, Committee Secretary
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