Approved
Minutes of Zoning Board of Appeals Public Meeting
Date: January 5, 2012
Time: 7:00 PM
Location: Wellfleet Sr. Center
Attendees:Bruce Drucker, William Nicholson, Robert Hankey, Mick Lynch , Tom Reinhart, Manny Heyliger, Roger Putnam, Sharon Inger and Christine Bates, Committee Secretary.
Regrets: Vern Jacob
Vice Chair Drucker opened the meeting at 7:00 p.m. and stated the meeting was being recorded.
Public Hearings:
7:00 pm
11-24~ Z Donut Co. (Dunkin Donuts), 2393 State Hwy, Map 23, Parcel 211: Application for a Special Permit under WZB 5.3.2 and 8.4.2 for Drive-Up window for existing coffee and donut business. Attorney Ben Zehnder requested to withdraw the application without prejudice on behalf of the applicant. Roger Putnam moved to accept the request to withdraw the application without prejudice; seconded by Mick Lynch; passed 5-0. Dan Silverman questioned if Dunkin Donuts is required to stay within the operating hours governed by the previous
special permit and the response was that if there are concerns, they should be addressed to the Building Inspector who enforces all conditions.
7:05 pm
12-01 Bradford Morse and Stephen Burke, Appeal pursuant to G.L.c.40A s 8 and WZB s.8.4.1 of October 25, 2011 written determination of Building Inspector that property at 210 Paine Hollow Road constitutes a lawfully pre-existing non-conforming building lot. The Board consisted of Bruce Drucker, Robert Hankey, William Nicholson, Manny Heyliger, and Roger Putnam. Attorney Ben Zehnder stated he represents Mr. Morse and Mr. Burke the two abutters to the property who are appealing the Building Inspector’s decision not to revoke the
previously issued building permit to the property owner, Mr. And Mrs. Gens. Mr. Zehnder stated the charge of the Board is to determine whether the lot is buildable or unbuildable. He gave an overview of the zoning bylaw change in 1975 regarding buildable lot size, and the 1976 exchange of land between the prior owner of the property and the prior owner of Mr. Morse’s property. Mr. Zehnder referenced bylaws, a Land Court decision in the Peterson case similar to this appeal, and the reasons for this appeal. He explained grandfathering of property and the circumstances when grandfathering is lost. Since there was a change to this lot in 1976 after the 1975 zoning by law change, Mr. Zehnder argued this lot is not protected under grandfathering and a building permit should not have been issued. Although the area of the lot didn’t change, the configuration of the lot changed.
The Board commented that the building permit for this lot was approved by three different building inspectors and questioned the exchange of land in 1976 and the ANR which was approved by the Planning Board. Mr. Drucker reviewed the chronology of the zoning changes, land exchange, and building permits granted as well as the 30 day appeal period. Mr. Zehnder stated the abutters did not have actual notice of the building permit. The Town of Wellfleet does not notify abutters of Building Permits by letter or notification in the newspaper(s).
Letters were read from the Cole Family, Pauline Cole, and Robert Paine, abutters, requested the Board to revoke the building permit and uphold the bylaws.
Attorney Duane Landreth, who represents the current owner of the property, gave an overview of MGL chapter 40A section 6 regarding grandfathering and property “held in ownership by common land”.~ Surveyor Chet Lay distributed a large version of the plan created in 1976. He gave a history of the land from 1965, which now consists of three individual parcels. There was a total of 1,798 square feet exchanged between Sally Morse and Mr. Montigmy in 1976 in order for Ms. Morse to meet required setbacks for a new single family house on her property. The Bowers owned all the land prior to 1965, and on January 6, 1965 they conveyed the eastern most portion of the land, not shown on a plan but by bounds. In 1975, the bylaws were changed. Mr. Landreth stated the Morse family benefited by the swap of
the 1,798 sq. ft of property in order to build on the lot. He stated the Peterson Land Court case referenced by Mr. Zehnder was not relevant because the lots there were owned by the same person. Mr. Landreth provided a chronology of the property in question which included the issuance of the building permits, abutter contacts with the Building Inspector, letter from Mr. Zehnder to the Building Inspector and the Building Inspector’s response not to revoke the Building Permit. Chet Lay, who performed the surveyed property, stated the exchange of land was at the request of the family who is appealing. Mr. Lay stated there are numerous cases of land swap in Wellfleet and this is the first time any such swap has been claimed to void the grandfathering of a buildable lot.
Sarah Paine Curly, Robert Paine’s daughter, spoke to the Board and a letter from Terry Galvin was read into the record requesting the Board revoke the Building Permit.
Tracy Gens, owner of the property, stated they went through a realtor, got a building permit prior to purchasing the property, went through Cape Cod 5 Bank for their mortgage, and at no time were they told this land was unbuildable. She stated she wants to be a part of the neighborhood and be a good neighbor.~
Mr. Zehnder stated the “equity” portions of Mr. Landreth’s argument are not relevant to whether the lot is properly grandfathered. Mr. Zehnder stated people knew this lot might not be buildable. Mr.Zehnder stated the Morse’s were aware of the building permit issued to the prior owner of the lot in July, 2010, but unaware of the permit issued to Mr. and Mrs. Gens in October, 2010, and that Mr. Burke was unaware of the permit.
Mr. Zehnder stated the advice given to the Building Inspector by Town Counsel prior to issuing the building permit was not relevant since Town Counsel didn’t see the plans. Mr. Landreth stated three building inspectors stated it was buildable, and feels the Board should uphold the building inspector.
There was discussion among the Board whether to send a request to Town Counsel for advice on the legal issues raised and/or have the attorney’s provide draft Findings of Fact. Mr. Landreth requested the Board vote at the present hearing and Mr. Zehnder agreed that a vote should be taken at this time.. Both Mr. Landreth and Mr.Zehnder stipulated to waive findings of fact which they both agreed were not needed for this appeal and that the Board should simply vote on whether to approve or not approved the Building Inspector’s decision not to revoke the building permit.
At 8:30 pm, the Board took a 5 minute adjournment.
The Board reconvened at 8:38 pm.
Mr.Drucker moved to accept the stipulation of the attorneys to waive findings of fact and to decide whether to approve or not approve the Building Inspector’s decision not to revoke the building permit and further to close the hearing to further testimony or evidence; seconded by Roger Putnam; passed 5-0. The Board reviewed the facts presented and made comments regarding the actions of the prior lot owner, the protection of undersized lots, equity, and that three Building Inspectors stated it was a buildable lot
Roger Putnam moved to overturn the decision of the Building Inspector refusing to revoke the building permit; seconded by William Nicholson; Vote: unanimously defeated, 0-5. .
Bruce Drucker moved to uphold the decision of the Building Inspector refusing to revoke the building permit; seconded by Roger Putnam; Vote: unanimously passed, 5-0.
Other Business
Bruce Drucker moved to approve the amended meeting minutes of December 15, 2011; seconded by Manny Heyliger; passed 5-0.
Bruce Drucker moved to adjourn at 8:45 pm; seconded by Sharon Inger; passed
5-0.
Respectfully submitted,
Christine Bates, Committee Secretary
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