Approved
Minutes of Zoning Board of Appeals Public Meeting
Date: July 19, 2012
Time: 7:00 PM
Location: Wellfleet Sr. Center
Attendees:Vern Jacob, Bruce Drucker, William Nicholson, Manny Heyliger, Robert Hankey, Roger Putnam, Mick Lynch, Sharon Inger, Sibel Asantugrul and Christine Bates, Committee Secretary
Chair Jacob called the meeting to order at 7:00 pm and stated the meeting was tape recorded. He stated he attended the Open Meeting Law seminar and gave an overview of some key points.
7:01 pm
12-18 Nickerson Lumber, 45 Commercial St., Map 15, Parcel 102: Application for a Special Permit under WZB 5.3.2 and MA GLc40 s6: build a covered lumber rack 85’ x 10’ by 14’ in height and request a floodplain exemption under 6.14.3 and 6.14.3.1 (Cont’d from 05/17/12). At the request of the applicant, William Nicholson moved to continue to 08/02/12; seconded by Robert Hankey, passed 5-0 by the regular board members.
7:10 pm
12-19 Glenn and Erin Mitchell, 150 Gross Hill Road, Map 13, Parcel 24: Application for a Special Permit under WZB 5.3.5 for a residential farm/stable permit for chickens (no roosters). Manny Heyliger stated he did not make a site visit and recused himself. The Board consisted of Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson and Mick Lynch replacing Manny Heyliger. Erin Mitchell gave an overview of the project. A letter of support from Bob Frankel and two letters of objection were read from Judith Borne and Ken Shea. The board stated they were in favor of the project. Robert Hankey moved for Findings of Fact;
seconded by William Nicholson; passed 5-0.
1. This is an application under WZB 5.3.5 to keep chickens on the property.
2. The application covers a residential property in the R1 district.
3. The buildings are lawfully existing under the Wellfleet Zoning Bylaws.
4. There will be a nominal insignificant increase in lot coverage.
5. The addition of the chicken coop and run represents an increase in use.
6. The use contributes to the diversity of the neighborhood.
7. The project and manure handling have been approved by the Wellfleet Board of Health.
8. No public or private views are impacted by the project.
9. The proposal is not a significant development.
10. After considering the District Objectives for the zoning district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2, the Board finds that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity.
11. The addition of the chicken coop and run will not be substantially more detrimental to the neighborhood than the existing structures.
Robert Hankey moved the Findings of Fact; seconded by Mick Lynch; passed 5-0. Bruce Drucker moved to grant the Special Permit based on the Findings of Fact with conditions; seconded by Robert Hankey; passed 5-0.
Conditions:
1. There shall be no roosters.
2. There shall be no more than 12 hens.
7:25 pm
12-22 Rispoli Ventures, LLC, 15 Lecount Hollow Road, Map 30, Parcel 22: WZB 8.4.2 and M.G.L.c.40A Section 6, Petitioner seeks a Special Permit for the movement of walk-in coolers from east side deck to north side deck, extension of the east end of north side covered deck, approval of altered parking plan, and construction and use of coffee bar under south side covered patio (Cont’d from 06/21/12). The Board consisted of Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson, and Manny Heyliger. Mick Lynch recused himself as an abutter. Attorney Ben Zehnder represented the applicant and stated he would like a continuation to
September 6, 2012 so he can submit two requests for amendments to previously approved Special Permits. He will remove the parking plan and the construction of a coffee bar from this request (12-22). The current application will be for the decking and coolers. The Board requested the applicant attend the next hearing. The Board reiterated their concerns with violations to the previously approved Special Permits. The Board requested that the applicant remove the outdoor seating for which no permit has been issued. Attorney Zehnder assured the Board that he would convey the board’s concerns and requests to the applicant. Attorney Zehnder stated the roofing over the outdoor patio was approved by the Building Inspector. Robert Hankey moved to continue to September 6, 2012; seconded by Manny Heyliger; passed 4-1.
7:45 pm
12-23 Carol Ridker and Alice Carter, 15 Kimball Street, a/k/a 206A Kendrick Ave, Map 20, Parcel 28: Appeal from Person Aggrieved: Revoke or Order the Building Commissioner to revoke Building Permit #12-129 issued to Susannah Pabot, for construction of a new single-family home on the property now designated as Unit 8 of the Barefoot By The Beach Condominium (Cont’d from 06/21/12). The Board consisted of Vern Jacob, Bruce Drucker, Robert Hankey, William Nicholson, and Manny Heyliger. Sibel Asantugrul recused herself. Attorney Reid, representing the applicants, stated the attorneys did not come to a solution. He stated he doesn’t feel the building permit should have been issued by right. He stated Unit 8 belongs to a commercial cottage colony and is not considered a year round residence. Because this is not a conforming lot, the building permit should be revoked.
Attorney Zehnder, representing the owner of the property, stated there will be appeals filed in the future and requested the Board file the decision for this hearing (12-24) at the same time the decision of the upcoming application for a Special Permit for Susannah Pabot (Hearing 12-26) is filed. Ms. Bates will contact Town Counsel for their advice regarding the date(s) of filing with the Town Clerk.
Attorney Zehnder stated three out of the four cottages on the lot are over the maximum square footage allowed for a cottage colony. He stated the Building Inspector did not determine this new structure intensified the use. The lot coverage for the 4 cottages is 4% and the new structure would increase the coverage to 6%. Chair Jacob read bylaws regarding cottage colonies, which are identified as seasonal. Letters of objection were read from Bill and Marleen Newman, David Pauls, and David Weintraub and Maggie Morehouse. Building Inspector Richard Stevens stated all documents were in place in April other than the plot plan which would take approximately one week and he gave the Pabot’s a verbal approval to start work at their own risk. Questions from the
audience included what the lot coverage allowance is and what will happen if all the small cottages in the harbor area are allowed to be expanded to this degree. Chair Jacob stated it is a 59,000 sq. ft. lot with four cottages on it and this unit has exclusive use of 29,000 sq. ft. but it is still on one single lot. A member of the audience stated Unit 8 is being rented at the present time.
The Board stated this is a cottage colony based on the 1994 Special Permit and Wellfleet Zoning Bylaws. Although individual owners have condominium deeds, the property is still one parcel and is a cottage colony based on the 1994 Special Permit. The current cottages were built prior to the current bylaws and are non-conforming as to our current bylaws.
Chair Jacob read the Findings of Fact from the 1994 Special Permit and read the conditions. Chair Jacob moved for Findings of Fact; seconded by Robert Hankey; passed 5-0.
1. This is an appeal pursuant to MGL ch. 40-A Section 8 by Persons Aggrieved from the decision of the Building Commissioner not to revoke Building Permit 12-129 for the construction of a new single-family home on the property at 15 Kimball St., Barefoot By the Beach Condominium, Assessors Map 20, Parcel 28.
2. On April 27, 2012 the Building Commissioner issued Building Permit 12-129 to Susannah Pabot, as Trustee of the Beer Wellfleet Properties Realty Trust to construct a single family home on the property. The permit authorized the construction of a two story single-family home, having gross floor area of approximately 2,061 square feet (or 1,841 square feet interior floor area).
3. No restrictions were placed upon the use or occupancy of the structure to be built.
4. The single family home for which the building permit was issued is in a different location than the existing cottage on the lot owned by Ms. Pabot known as Unit 8.
5. Construction of the single family home has commenced and the exterior framing has been substantially completed.
6. The subject lot contains 69,783 square feet of total area. There are presently four cottages on the subject lot, one of which is owned by Ms. Pabot.
7. On May 14, 2012 the Persons Aggrieved wrote to the Building Commissioner appealing the issuance of a building permit and requesting a stop work order.
8. On May 17, 2012 the Persons Aggrieved wrote to the Building Commissioner requesting a reply to their May 14, 2012 letter.
9. On May 22, 2012 the Building Commissioner wrote to the Persons Aggrieved advising that the permit was issued in compliance with the Wellfleet Zoning Bylaws and the Massachusetts Building Code and denied the request for a stop work order.
10. The subject lot for which Building Permit 12-129 was issued was previously part of a larger lot containing a cottage colony which was divided into three lots in 1994.
11. In 1994, the then owner of the subject property and the adjoining land petitioned the Zoning Board of Appeals for several variances and Special Permits to divide the larger lot into three lots, each containing several cottages, nd to operate each lot as a cottage colony. On October 27, 1994 the Zoning Board of Appeals issued a decision in case #94-28 granting seven dimensional variances with respect to the subject lot and two connected lots from sideline setbacks in order to allow the property to be divided into three lots; in the same decision the Zoning Board of Appeals granted a
Special Permit to allow the three lots shown on the Slade Associates, Inc. September 29, 1993 plan to continue to be used as cottage colonies and subject to the condition that no additional cottages may be constructed on any of the parcels without prior permission to the Zoning Board of Appeals. Since that decision, the property was operated as a “cottage colony” pursuant to the Special Permit.
12. The lot that is the subject of this appeal is one of the lots described in and subject to the October 27, 1994 Zoning Board of Appeals decision.
13. In April 2011, the owner of the property converted the ownership from a single owner to condominium ownership, with each pre-existing cottage becoming a condominium unit. The entire parcel remains a single “lot”.
14. The and the cottages on it are a Cottage Colony as defined in Wellfleet Zoning Bylaws 2.1 as follows: Cottage Colony - a group of two or more detached dwellings located on the same lot, each containing one dwelling unit only which is designed for independent family living including cooking facilities and occupied on a seasonal basis only. Seasonal shall be defined as a period commencing April 1 of each calendar year and terminating November 30 of
the same calendar year. Each unit shall contain not less than 550 sq. ft. of floor area and not more than 768 sq. ft.
15. The Building Permit was not lawfully issued, as construction of a single-family home on this site would violate the zoning Bylaws by exceeding the density requirements for the district; there is insufficient area to accommodate the cottage colony plus a single-family home, and the bylaw does not allow multiple principal structures or uses on a single lot.
16. The addition of a single-family home to the existing use of the site as a cottage colony, or the change of use of a cottage on the site to a single-family home, would constitute an impermissible change of use (to single-family residence and/or mixed use), which would not be allowed absent relief from the Zoning Board of Appeals.
17. The structure authorized by the building permit would violate the cottage colony Bylaw and existing Special Permit, because the structure exceeds the size allowed for a cottage within a colony, and because the building permit was not restricted to seasonal cottage colony use, and the additional structure would exceed the number of cottages/structures on the site allowed in the 1994 special permit.
18. Pursuant to Wellfleet Zoning Bylaw relief from the Zoning Board of Appeals is required for the construction of a dwelling within a cottage colony that is in addition to or an increase in the extent of the nonconforming use.
19. Building Permit 12-129 was improperly issued as of right and must be revoked.
Bruce Drucker moved to grant the appeal based on the Findings of Fact;~the Appeal~of the Persons Aggrieved to revoke Building Permit 12-129 is granted:
A. Building Permit 12-129 is revoked;
B. No further work is to be done on the residence for which Building Permit 12-129 was issued unless and until authorized by the Zoning Board of Appeals; and,
C. The structure and foundation built pursuant Building Permit 12-129 shall be demolished and removed from the site within 120 days of the date of this decision unless relief for it is applied for and obtained by its owner before that date; seconded by William Nicholson; passed 5-0.
Other Business:
Chair Jacob welcomed Sibel Asantugrul back to the Board as an alternate member.
Roger Putnam moved the amended meeting minutes of 06/21/12; seconded by Bruce Drucker; passed 5-0.
Bruce Drucker moved to adjourn at 8:30; seconded by William Nicholson; passed 5-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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