Approved
Minutes of Zoning Board of Appeals Public Meeting
Date: January 3, 2013
Time: 7:00 PM
Location: Wellfleet Sr. Center
Attendees: Acting Chair Bruce Drucker, William Nicholson, Manny Heyliger, Roger Putnam, Mick Lynch, Sharon Inger and Christine Bates, Committee Secretary
Regrets: Vern Jacob and Sibel Asantugrul
Acting Chair Drucker called the meeting to order at 7:00 pm. Chair Drucker paid tribute to Robert Hankey who passed away on December 23, 2012.
7:01 pm
12-34 Heather Reavey, 145 Indian Neck Road, Map 28, Parcel 135: Application for a Special Permit under WZB 6.1.5 for an alteration of a nonconforming single family residential structure. The Board consisted of Bruce Drucker, William Nicholson, Manny Heyliger, Sharon Inger and Mick Lynch. Peter Coneen represented the applicant and explained the existing structure would be replaced as it has been abandoned for at least 12 years. Photographs were distributed to the Board identifying the property and current structure. Mr. Coneen stated the Conservation Commission and the Board of Health approved the plan as proposed. The issue is the setbacks with the building at 11’ 9” from the front setback and 13.5’ from the side setback. The
entire lot is within the flood zone. He proposes modifying the existing foundation with an elevation of 15. Lot coverage will be 6.6% and the roof elevation will be 25’. The habitable space will be approximately 1,200 sq. ft. A letter from William Gazzola objecting to the project was read into the record. Sandy Wonders stated she spoke on behalf of the immediate abutters who wholeheartedly supported the project. It was asked if the address may change to Crowell Road and Mr. Coneen stated the Fire Department would make that call. The Board stated they did not have definite figures in front of them identifying the height and the current and proposed habitable square footage. The Board felt this project was an improvement and requested Mr. Coneen provide the necessary dimensions. Bruce Drucker moved to continue to January 17, 2013; seconded by Manny Heyliger, passed 5-0.
7:20 pm
13-01 Robert and Angela Heffron, 54 Hiller Ave, Map 20, Parcel 68, Application for a Special Permit pursuant to M.G.L.c.40A.s.5 and WZB 6.15 and 8.4.2 to renovate the existing garage at locus and construct a 136 sq. ft. addition, converting these areas into a master bedroom suite and bathroom as well as an entryway to the existing house. The Board consisted of Bruce Drucker, Manny Heyliger, William Nicholson, Sharon Inger and Roger Putnam. Attorney Ben Zehnder represented the applicant and gave an overview of the project, stating the garage would be converted to a master bedroom suite which will add an additional 160 square feet. The current lot coverage is 1,255 square feet and will increase to 1,391 square feet, with lot coverage going from 9.81% to 10.87. He stated if the applicants built a second story on
the existing structure, it would hinder the views of the abutters across the street. The height of the proposed project is lower than the height of the main dwelling. A letter from Janet Rustow, abutter, stated she had no objection as long as the height of the project was not higher than the porch roofline. The drawings did not identify elevations. Bruce Drucker moved to continue to January 17, 2013; seconded by Roger Putnam; passed 5-0.
7:35
13-02 P.J.’s Realty Trust, Donald R. Reeves Trustee, 2616 State Highway, Map 23, Parcel 40, Applicant is appealing , pursuant to M.G.L. Chapter 40A., Section 8, the December 4, 2012 written determination of the Building Inspector that the replacement in kind of an existing non-conforming commercial building constitutes a change or alteration; or in the alternative a determination pursuant to M.G.L.c.40A, Section 6 that such replacement is not substantially more detrimental than the existing structure. The Board consisted of Bruce Drucker, William Nicholson, Manny Heyliger, Sharon Inger and Mick Lynch. Attorney Ben Zehnder and Don Reeves, the owner of the property, explained the building will remain on the same footprint with a new foundation which will increase the height by 2 ½ feet because the crawl space has
sunk over the years. Attorney Zehnder requested the Board to make a determination that this will not create any new nonconformities to the structure. This project has been approved by the Conservation Commission. The McCaffery’s and Slade Associates wrote letters of support for the project. Bruce Drucker moved that the demolition and replacement of the existing shed located at 2616 Route 6 known as Jack’s Boat Rental would not be substantially more detrimental to the neighborhood than the existing shed; seconded by Manny Heyliger; passed 5-0. Attorney Zehnder requested to withdraw the portion of the application to appeal the Building Inspector pursuant to M.G.L. Chapter 40A, Section 8, the written determination of the Building Inspector that the replacement in kind is an existing non-conforming commercial building constitutes a change or alteration. Bruce Drucker moved to allow the withdrawal of the part ofthe
application appealing the Building Inspector's determination ; seconded by Manny Heyliger, passed 5-0.
7:50 pm
13-03 Susannah Pabot, Trustee of the Beer Wellfleet Properties Trust, 206A Kendrick Ave., Map 20, Parcel 28, Application for a Special Permit under WZB 8.4.2 and 6.11 to expand an existing cottage colony by altering a residential unit therein; or M.G.L.c.40A Section 6 to alter or expand an existing cottage colony by altering a residential unit therein or to amend Special Permit No. 94-28 to alter a residential unit therein in the removal of so-called Unit #8 and replacement of the same with a single family residential structure. The Board consisted of Bruce Drucker, Manny Heyliger, William Nicholson, Mick Lynch and Roger Putnam. Attorney Zehnder represented the applicant and stated the project consists of the removal of the foundation, dropping the main floor to ground level and include a small
utility shed 4’ x 6’ to house the water heater and furnace. Attorney David Reid provided a copy of a letter he wrote on his client’s behalf. Attorney Zehnder stated the structure will be used seasonally and the square footage meets the requirements of the bylaws. The Board had no statement regarding the plans.
Attorney Reid provided a letter to the Board he wrote on behalf of his clients. He stated this application is not replacing the original cottage, but to replace the structure which has been built. He requested this not be a year round use, he stated this is a commercial cottage as a use and not a residential structure and asked that it be incorporated in the decision that this is a commercial use, it is important that there be no occupancy in the new building until the old unit (#8) is demolished and removed. The previous building permit was revoked, and Mr. Reid argued that no building permit be issued for this new dwelling until the appeal of the Board's revocation of the old building permit is withdrawn. Attorney Reid stated the floor area should include the 4’ x 6’ utility shed because it
would be over 768 square feet. Bruce Drucker stated the original structure was 780 sq. ft. and felt the board could allow the utility shed; however, Mr. Reid stated because this is a commercial structure, it has to comply with the bylaws. Attorney Zehnder stated if the special permit is granted, the appeal will be withdrawn. He requested this be granted under the amendment to Special Permit 94-28. There was a discussion regarding the location of a shed on the property. Attorney Leslie Morse stated she feels the 24 square feet is important. The Board stated they felt this is a good faith attempt to reach the requirements of the bylaws, they do not feel the 24 sq. ft. shed is material, and a shed could be built to accommodate the utilities separately.
Bruce Drucker requested a 10 minutes break at 8:30 pm and the meeting reconvened at 8:35 pm.
Roger Putnam moved for Findings of Fact; seconded by Bruce Drucker; passed 5-0.
1. This is an application for a Special Permit under (i) WZB 8.4.2 and 6.11 to expand an existing cottage colony by altering a residential unit therein; or (ii) M.G.L.c.40A Section 6 to alter or expand an existing cottage colony by altering a residential unit therein; or (iii) to amend Special Permit No. 94-28 to alter a residential unit therein in the removal of so-called Unit #8 and replacement of the same with a single family residential structure.
2. The Zoning Board of Appeals has made a site inspection of the lot which is the subject of this application and has reviewed all plans and drawings submitted with respect to this application.
3. Over the years this Zoning Board of Appeals has considered numerous applications for the alteration of existing cottages in various cottage colonies throughout Wellfleet. The Board has inspected numerous cottage colonies in Wellfleet and is familiar with the cottage colonies in Wellfleet. 4. This application concerns the proposed removal of cottage unit #8 owned by the applicant and its replacement by the applicant with a new structure at a different location on the lot.
5. The lot consists of 1.373 acres, or 59,788 square feet of land.
6. The lot contains four cottages, each with a living room, dining area, kitchen, three bedrooms and a bathroom.
7. Unit 8 contains 782 square feet of floor area. The other three cottages contain approximate floor areas of 737, 800, and 815 square feet.
8. The subject lot was previously part of a larger lot containing a cottage colony which was divided into three lots in 1994.
9. In 1994, the then owner of the subject property and the adjoining property petitioned the Zoning Board of Appeals for several variances and special permits to divide the larger lot into three lots, each containing several cottages, and to operate each lot as a cottage colony. On ` October 27, 1994 the Zoning Board of Appeals issued a decision in case # 94-28 (which is incorporated herein by reference) 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 has been operated as a “cottage colony.”
10. In April 2011, the owner of the subject cottage colony converted the ownership from a single owner to condominium ownership, with each pre-existing cottage becoming a condominium unit. Ownership of the residential units is now via a condominium known as Barefoot By the Beach Condominium, with each unit having an exclusive use land area.
11. Unit 8 and all units on the property are presently used for seasonal use and are prohibited by the
terms of the Condominium Master Deed to be used year-round .
12. On April 27, 2012 the Building Commissioner issue Building Permit 12-129 to the applicant to construct a two story single family home on the property having a total floor area of approximately 2061
square feet.
13. The single family home for which the building permit was issued is in different location on the lot than the existing cottage 8. 14. Prior to the appeal with respect to Building Permit 12-129 the applicant had constructed the footings, foundation and exterior shell of the single family home, which was planned to have two floors of living space - a ground floor and a first floor, each with approximately 1053 square feet of area.
15. Building Permit 12-129 for the single family home was ordered revoked by the Zoning Board of Appeals in Decision #12-24 (which is incorporated herein by reference).
16. The design of the dwelling was modified by the applicant following Decision #12-24 and the applicant has applied for this Special Permit to construct a cottage on the subject lot.
17. The Wellfleet Zoning Bylaw §2.1 defines a “Cottage Colony” as:
“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 1of 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.”
18. The Wellfleet Zoning Bylaw §2.1 defines “Floor Area of a Building” as:
“The sum of the gross horizontal area of the several floors of a building & its accessory buildings on the same lot, excluding cellar & basement floor areas not devoted to residential use, but including the area of roofed porches & roofed terraces. All dimensions shall be measured between exterior faces of walls.”
19. The subject cottage colony use is a “commercial use” under the Wellfleet Zoning Bylaw use table, section 5.3.2. It exists as a commercial use within the R1 district.
20. The total building coverage on the lot of the four existing cottages is 3134 square feet.
21. The percentage of existing total building coverage of the four existing cottages is 5.24%.
22. The total building lot coverage of the property with removal and replacement of the existing cottage 8 will be approximately the same as the existing 3134 square feet.
23. The percentage of total building lot coverage of the lot with the removal of cottage 8 and the construction of the proposed cottage will be approximately the same as the existing building lot coverage .
24. The proposed structure will not contain any additional bedrooms or living areas not contained in the present cottage # 8.
25. The proposed structure as re-designed by the applicant contains 768 square feet of floor area on the first floor.
26. The proposed structure as redesigned by the applicant complies with the definition of is a cottage as defined by Wellfleet Zoning Bylaw §2.1.
27. Pursuant to the special permit criteria contained in Wellfleet Zoning Bylaw section 8.4.2, the Board finds that the applicant has demonstrated that the proposed replacement cottage would satisfy the criteria for the following reasons:
a) The proposed replacement would be a conforming cottage because its floor area is the 768 sq. ft. allowed by WZBL 2.1 while the existing cottage 8 exceeds the limit of floor area allowed for a unit within a cottage colony by approximately 14 sf . The reduction in floor area brings the structure into compliance with the Wellfleet Zoning Bylaw definition
of a unit within a Cottage Colony.
b) The proposed cottage complies with all current lot setback, lot coverage and height requirements of the Wellfleet Zoning Bylaw.
c) The proposed replacement cottage would be a more conforming cottage because it is not within the setbacks while the existing cottage 8 is partially within the setbacks.
d) The building and site design as modified by the applicant give adequate consideration to the impacts of the proposed development to the scenic views from adjoining public and private properties.
e) The use of the replacement structure as a cottage in a Cottage Colony with a reduced living area will not increase the intensity of the use of the lot.
f) The total building lot coverage is well under the maximum lot coverage in the R1 zoning district of 15%; therefore the density of the units on the property as proposed is consistent with and below intended limits in this district for single family residential use even though the property is a cottage colony.
g) This application contains a significant and unusual procedural history, and approval of the cottage unit as proposed does not intend to create any precedent regarding approval by this Board for alteration of any other unit within the subject cottage colony or any unit in any other cottage colony in Wellfleet
28. The proposed cottage will not be more substantially detrimental to the neighborhood than the existing non-conforming cottage 8.
29. 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.
Roger Putnam moved to approve the above Findings of Fact; seconded by Manny Heyliger; passed 5-0.
Roger Putnam then moved to amend Special Permit #94-28 based on the foregoing Findings of Fact so as to allow the replacement of existing cottage # 8 with the proposed new cottage subject to the following conditions:
A) Prior to the issuance of a certificate of occupancy for the proposed new cottage and prior to the occupancy and use of the proposed new cottage, existing cottage # 8 will be demolished and the debris removed from the property.
B) Pursuant to WZBL 2.1 the new cottage will only be occupied seasonally, that is, the new cottage will not be occupied during the period commencing December 1 of each calendar year and terminating March 31 of the following calendar year.
C) The permit will not be issued for the construction of the replacement cottage until the appeal of the Board's Decision #12-24 is dismissed.
seconded by Manny Heyliger. Passed 5 -0
Mr. Zehnder then requested withdrawal of parts (i) and (ii) of this application. Mr. Drucker moved to grant the applicant's request to withdraw those portions of the application requesting a Special Permit under (i) WZB 8.4.2 and 6.11 to expand an existing cottage colony by altering a residential unit therein and (ii) M.G.L.c.40A Section 6 to alter or expand an existing cottage colony by altering a residential unit therein. Mr. Putnam seconded the motion which was passed unanimously 5 – 0.
Roger Putnam moved to grant the Amendment to Special Permit 94-08 subject to the conditions; seconded by Bruce Drucker; passed 5-0.
Business
Meeting Minutes
Roger Putnam moved to approve the amended meeting minutes of 12/20/12; seconded by Manny Heyliger; passed 5-0.
Bruce Drucker stated Roger Putnam will apply for the permanent position on the Board and Don Palladino will apply for the alternate position.
Bruce Drucker stated the Board can get an independent consultant for difficult cases at the expense of the applicant under MA Law. He provided a draft consultant fee regulation to the Board.
Roger Putnam moved to adopt a consultant fee regulation; seconded by Bruce Drucker; passed 5-0. This consultant fee regulation will be posted on the Town Web Site.
The Consultant Fee Regulation Unanimously adopted by the ZBA reads as follows:
Zoning Board of Appeals Consultant Fee Regulation
Employment of Outside Consultants.
A. General. The Zoning Board of Appeals (the “Board”) may determine that the size or complexity of an application or its impacts warrant the services of outside consultants (including but not limited to engineers, planners, lawyers, hydrologists, geologists, traffic engineers, or others) for plan review, review of engineering or other expert reports, impact analysis, inspections, or other technical assistance in relation to the application l. Such professionals shall be selected and retained by the Board as provided in G. L. c. 44, § 53G, with the reasonable costs for their services to be paid by the applicant.
B. Selection and administrative appeal. The applicant shall be notified in writing with the name of the selected consultant(s) at least seven calendar days prior to initiation of the consultant’s efforts, unless this notice period is waived in writing by the applicant. The applicant may administratively appeal the selection of the consultant(s) to the Board of Selectmen. The grounds for such an appeal shall be limited to claims that the proposed consultant has a conflict of interest or does not possess the minimum required qualifications. Such an appeal may be initiated by the applicant filing notice with the Town Clerk within five working days after the Board’s date of notice of its selection. The consultant shall not begin its services until any appeal has been decided or 30 calendar days have
elapsed without a decision by the Selectmen, in which case the selection of the Board shall stand. Required time limits for action by the Board upon an application shall be automatically extended by the duration of the administrative appeal.
C. Funding. The applicant shall file with the Board an amount of money equal to the estimated cost for the services of the consultant(s), as determined by the Board. The cost will be estimated so as to be generally proportional to the size and complexity of the application, and the number of reviews and meetings required. The funds shall be deposited by the Town Treasurer into a special interest bearing account as provided by G. L. c. 44 § 53G. The funds in the special account, including accrued interest, shall be expended at the direction of the Board without further appropriation. If the unexpended balance falls below 30% of the initial estimate, or the estimate is raised to pay for additional services deemed necessary by the Board, the account shall be restored to its original level or
such lower level as determined to be reasonable and necessary by the Board. Upon completion of the project and final payment of the outside consultant(s), any unexpended balance, including accrued interest, shall be repaid to the applicant or the successor in interest.
D. Reporting. The Town Accountant shall submit annually a report of all such special accounts to the Board and Board of Selectmen for their review. The annual report shall be published in the Town Report and a copy submitted to the state Director of the Bureau of Accounts. A final report of the special account for a project shall be submitted to the applicant or his successor in interest.
E. Remedy. Failure of an applicant to pay fees required hereunder (or any other fees required in other parts of this chapter) shall be grounds for the Board to continue hearings or disapprove the application,
Bruce Drucker moved to adjourn at 9:15 pm; seconded by Manny Heyliger; passed 5-0.
Respectfully submitted,
Christine A. Bates, Committee Secretary
Public Records Material:
Photographs of Heather Reavey’s current structure
Consultant Fee Regulation
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