approved 03 25 21 zba mtg mins

Approved

Wellfleet Zoning Board of Appeals

March 25, 2021  7:00 pm

Remote Meeting

Attendees:  Sharon Inger, Mick Lynch, Trevor Pontbriand, Manny Heyliger, Andrew Freeman, Al Mueller and Jan Morrissey.  Christine Bates, Committee Secretary and Town Counsel Jonathan Murray.

Regrets:  Wil Sullivan; Reatha Ciotti recused herself

Chair Inger called the meeting to order at 7:00 pm.

7:00

21-13  Great White Realty Group LLC, 1065 State Highway, Route 6:  Applicant appeals pursuant to M.G.L. c. 40A s. 8 from the Inspector of Building’s January 14, 2021 Notice to Cease, Desist and Abate and zoning determination that clearing of applicant’s property violates WZB 8.2 (Permit Required) and from zoning determination that the clearing, constitutes the listed excluded uses or uses requiring a Special Permit, “Open Bulk Storage, Quarry, Sandpit, Stripping of Topsoil”.

21-14  Great White Realty Group LLC, 1065 State Highway, Route 6:  Applicant appeals pursuant to M.G.L. c. 40A s. 8 of February 11 and February 22, 2021 Inspector of Buildings determination that 1) applicant’s proposed permitted Contractor’s Yard use requires special permits for Bulk Storage, Open and for Industry, Light for open storage of sand, loam, t-base and stone and screening of topsoil; 2) applicant’s grading of the property for permitted Contractor’s Yard use requires a permit from the Inspector of Buildings.

21-15  Great White Realty Group LLC, 1065 State Highway, Route 6, Application for a Special Permit under M.G.L. c. 40A s. 9 and WZB 8.4.2 for Bulk Storage, Open for open storage of sand, loam, t-base and stone, and for Industry, Light for screening of topsoil in the Commercial Zoning District; and a Special Permit pursuant to WZB 5.4.13 for multiple principal uses in the Commercial Zoning District, i.e. Contractor’s Yard, Bulk Storage, Open, and Industry, Light.

Chair Inger stated the Board would open all three Great White Realty Group LLC’s hearings at one time.  She provided the sequence in which the meeting was to be held:  Applicant’s attorney presentation, statements from the public, letters from abutters/concerned citizens, Board questions.

Attorney Ben Zehnder stated he had heard from Attorney David Reid who is representing several abutters.  Due to a personal issue, he is unable to attend tonight and requested the Board allow him the opportunity to make a presentation at a later date.  Attorney Zehnder gave a general overview of the three applications.  He provided a background on the Building Inspector’s and his discussions and emails.  Zehnder explained the intended uses of the property and emphasized this would be a contractor’s yard based on the storing of materials.  He stated there will be no retail sales and only employees would be on the property.  GFM will store equipment and vehicles on site and employees would park their personal vehicles and take the company’s vehicles for deliveries.  There will be no buildings on site.  The property will require a new curb cut permit from the State.  He described the proposed plantings for the buffer area.  He stated fencing could be erected for screening as a condition.  They do not believe a Special Permit is required. 

Chair Inger opened the meeting to the audience.

Mr. Horowitz:  cutting down trees without a permit and should be required to replant trees.

Halina Brown:  concerned with water safety.  Require hydrological testing

Pat Lemme:  concerned with water quality, dust, diesel fumes, property values and hours of operation.

Lou Weiss:  concerned with clear cutting, piles of sand and soil[MOU1] [SI2]  are higher than nearby houses, has added additional sand and soil[MOU3]  after the cease and desist was issued with no permits.  No buffer left, noise levels, location not suitable for this operation.

Mr. Brown:  safety with highway entrance / exits.  Unsafe for pedestrians

Ken Granlund:  in favor of project, town needs to create jobs

Deborah Dickinson:  agrees with safety issues, accidents happen on Rte 6 at the intersection with the traffic light.

Ashley Keefe:  water contamination and traffic safety

Cathy Corman:  traffic safety

Brendon Stevens:  feels this project is ok and has not witnessed accidents.  Chair Inger muted him due to his use of inappropriate language and reference to properties not involved in the hearing.[SI4] 

Dwight Estey:  Considers this is a multi-use application.  With the proposed planting plans, it would take over 20 years for the trees to grow to become an adequate buffer.  Referred to the Special Permit granted to the previous owner and[SI5]  the condition(s) regarding removal of trees for the building and parking area(s).

Stephen Roehm:  Asked the Board to focus on bylaw 5.2 which includes not being detrimental to the neighborhood regarding dirt, dust, noise, odors, fumes, etc.  Property values will be affected.  Request the applicant provide additional information.

Peter Hall:  owner of restaurant which is immediate abutter, concerned because he has permission for outdoor seating and is concerned with water quality, air quality and noise.

A letter from Douglas Franklin:  fumes, safety, noise, out of scale with other businesses, would like to see details on site plan identifying buffers, barriers, access from Rte 6; oil spills, storage of gas/diesel, rain runoff to Old Wharf Rd., have no underground storage, lighting, vehicles being screened, and the height of the piles of sand / dirt / stone.

Jason Duva spoke:  noise issues, fencing would not help block the view of the property,

Letter Jeffrey Glaze:  safety issues, return site to original state

Letter Ms. Kozak:  scope of work, sees piles of sand out her window, , [MOU6] [SI7] would like to see traffic study, house values decreased, noise and quality of air.

Susan Rutherbee:  traffic issues, shell fishermen drive down Old Wharf Road as well as neighbors.

Katy Cushman spoke:  supports businesses but concerned about safety and large scope of work.

Christine Woods spoke:  safety, quality of life, property values, eye sore with piles of sand; states there are 10 children in the immediate area with 5 under 3 years old.

Attorney Zehnder rebutted statement regarding children, only one house is year- round and other 3 are seasonal use.He stated there were no violations regarding the tree cutting because the applicant owns the property, and this is not a scenic highway.Driveway is 200 feet from Old Wharf Rd.He stated the Commercial District was designed for this type of business.

The Board agreed to hear Application 21-15 at a later date to allow Attorney Reid to participate in the application. 

Attorney Zehnder stated the applicant would eliminate the screening of loam which would fall under the light industry description.  

Chair Inger requested Paul Fowler, Building Inspector, present a timeline of correspondence / emails with Attorney Zehnder and the owner(s) of the property.

January 11, 2021:  saw clearing before a permit was issued.  He contacted GFM and was told they were not sure what was going to be taking place on the property.

January 13, 2021:  Met with DiGiovanni at the site and was advised trucks would be parked, there would be screening of top soil and loam, T-base storage, piles of materials would be processed and taken away.  He advised Paul he was considering building over the foundation in the future.  Paul advised he must have permits for all activity.

January 14, 2021:  Paul saw additional materials were being brought into the property. Issued cease and desist order.  Top soil was stripped.

January 15, 2021:  Mr. DiGiovanni submitted a permit application to excavate and level the lot.  Attorney Zehnder contacted Paul if an application had been provided and Paul stated there were no plans submitted.

January 19, 2021:  Paul advised he required plans

January 27, 2021:  DiGiovanni stated there would be loam processing on the property.

January 29, 2021:  Another request for plans

February 1, 2021: Received email from Zehnder requesting determination regarding cease and desist permit.

February 11, 2021: Advised a Special Permit would be required for materials on the property

Paul Fowler stated he did not consider the use as a contractor’s yard and required additional information on the business.  They requested the cease and desist be lifted.

February 17, 2021: A list of vehicles was provided.  It is Paul’s opinion that the vehicles will be utilized and not just parked on the site and does not fall into a contractor’s yard definition. 

February 22, 2021:  Paul issued a permit denial letter advising them that a Special Permit would be required for the grading that was performed, and for the retaining wall (foundation).  He stated there is a difference between a permited use of the land and a permit to use the land.  It is not the applicant’s decision if they require a permit.

The Board requested Attorney Zehnder supply every operation and use proposed for the business and where items will be placed or stored.  The site plans do not identify setbacks, nor is it stamped or signed by an engineer.  Attorney Zehnder replied that the site plan shows the areas, and that setbacks are not for “use”, only for buildings.  He stated the trucks will be stored at night and utilized during the day.  He stated he will discuss quantities of sand, stone, and other supplies with the applicant and how many trips would be required.  Paul Fowler stated there are track vehicles to be used for loading and unloading materials.

Paul Fowler reiterated his decision to issue two cease and desist and abate (undo violation of not having permits and stripping of top soil).  He does not feel this is a contractor’s yard due to the tracked machines, and the loading and unloading of materials.  He referred to the definition of a contractor’s yard and this[SI8]  plan does not call for a building on the property

Al Mueller questioned how this characterizes as industry light when there are so many issues with the abutters.  Paul Fowler stated the property owner would have to adhere to regulations regarding dust, noise, etc. 

The Board discussed the Building Inspector’s statements and to move forward with Application 21-13.   Jonathan Murray, Town Counsel, advised to wait for Attorney Reid.  Attorney Zehnder stated he would like to have the decisions filed at one time.  Attorney Murray questioned what the applicant intended to do with the top soil that was disturbed on the site.  Attorney Zehnder stated that the applicant intended to use the majority of the top soil to re-grade the site, but that any top soil left over may be screened and used in the ordinary course of GFM’s contractor’s yard.    The trees were removed from the site.  Bylaw 8.2 was violated. 

Mick Lynch moved to uphold the Building Inspector’s January 14, 2021 cease and desist order;  seconded by Jan Morrissey.  Manny Heyliger aye; Trevor Pontbriand aye; Mick Lynch aye; Jan Morrissey aye and Sharon Inger aye.  VOTE  5-0

Application on Appeal 21-14  Bulk Storage, Light Industry etc. does it require a Special Permit.  Attorney Zehnder stated they will remove the screening activity from the site.  Paul Fowler stated the activity and vehicles of loading the materials and unloading materials is considered Light Industry.  Zehnder read the bylaw regarding bulk storage.  He stated you can’t get the material in and out of trucks without loading and unloading and doesn’t agree that the proposed use fits the definition of Light Industry.  Sharon Inger reiterated the Board has to determine if this property requires a Special Permit.  The Board further discussed waiting for Attorney Reid regarding this application and determined that bulk storage is an allowed use which requires a Special Permit in the Commercial District.

Mick Lynch moved to uphold the Building Inspector’s cease, desist and abate decision dated February 11, 2021 and February 22, 2021 and that the proposed use requires special permits for Bulk Storage, Open and for Industry, Light for open storage of sand, loam, t-base and stone and screening of topsoil ; seconded by Manny Heyliger.  VOTE:  Jan Morrissey aye, Trevor Pontbriand aye; Mick Lynch aye; Manny Heyliger aye and Sharon Inger aye.  5-0.

Janet Morrissey moved to continue all three applications to April 8, 2021; seconded by Mick Lynch.  VOTE:  Jan Morrissey aye; Trevor Pontbriand aye; Mick Lynch aye; Manny Heyliger aye and Sharon Inger aye.  5-0.

Mick Lynch moved to approve the amended February 11, 2021 meeting minutes; seconded by Trevor Pontbriand.  VOTE:  Jan Morrissey aye; Mick Lynch aye; Trevor Pontbriand aye; Manny Heyliger aye; Sharon Inger aye and Andy Freeman aye.  6-0

Trevor Pontbriand moved to approve the March 11, 2021 amended meeting minutes; seconded by Jan Morrissey.    VOTE: Jan Morrissey aye; Mick Lynch aye; Trevor Pontbriand aye; Manny Heyliger aye; Sharon Inger aye and Andy Freeman aye.  6-0

[MOU9] [SI10] 

Mick Lynch moved to adjourn at 9:30 pm; seconded by Jan Morrissey.   Jan Morrissey aye; Mick Lynch aye; Trevor Pontbriand aye; Manny Heyliger aye; Sharon Inger aye, Al Mueller aye; and Andy Freeman aye.  7-0.[MOU11] [SI12] 

Respectfully submitted,

Christine Bates, Committee Secretary

Documents: 

21-13:  Appeal from Person Aggrieved application, and back up materials

21-14:  Appeal from Person Aggrieved application and back up materials

21-15:  Special Permit application and back up materials

Correspondence between Building Inspector Paul Fowler and Attorney Ben Zehnder

Correspondence between Chair Sharon Inger and Town Counsel Carolyn Murray

Letter from Chief of Police

Letter from Planning Board

Letter from Attorney David Reid who is representing several abutters

Emails objecting to project:  Richard and Maureen Ramos, Beth and Keith Jorgensen, Eva Scott, Tom Cole, Lisa Monahan and Andy Levine, Kathleen Casey, Neil Shubin and Michele Seidl, Ruth Ostenson, Janet and Bill Dugan, Arlene Estey, Randall Wilkening, JoAnne Gribbons, Dan Williams, Mark Bunnell, Susan Fortgang Schecter and Robert Schecter, Marta Hansen, Laura Kozak, Samuel Engel, Greta Wilkening, Amy Wolf and Kevin Coakley, Bill Iacuessa, Alice Iacuessa, Arthur Zelman, Denise and Eric Kandel, Deborah O’Neil, Richard and Maureen Ramos, Herb and Elizabeth Elliott, Stephen Craig and Naima She, Tom Janssen, Arthur Brown, Katy Cushman, Stephen Roehm, Lewis Wise and Amy Charney, Catherine Corman and Markus Penzel, Susan Reverby, Christine Woods, Laura Kozak, Halina Brown, Brendon Stevens, Dwight Estey, Christine Woods, Peter and Diane Hall