Approved ZBA meeting minutes

Meeting date:

Thursday, October 8, 2020

Approved

Wellfleet Zoning Board of Appeals

October 8, 2020, 7:00 pm

Remote Meeting

Attendees: Sharon Inger, Mick Lynch, Trevor Pontbriand, Manny Heyliger, Wil Sullivan, Reatha Ciotti, Jan Morrissey and Christine Bates, Committee Secretary

Regrets: Andy Freeman

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

7:00 pm

20-13 Cumberland Farms, Inc., 2586 State Highway, Route 6, Map 23, Parcel 39: Appeal from Person Aggrieved: Appeal of the Building Inspector’s August 3, 2020 denial of CFI’s application for Sign Permit in connection with replacement of its tenant’s freestanding sign located at 2485 State Highway. Attorney Carolyn Murray attended the hearing. The Board consisted of Mick Lynch, Trevor Pontbriand, Manny Heyliger, Wil Sullivan and Sharon Inger. Attorney Douglas Troyer represented Cumberland Farms Inc. He provided information regarding his discussions with then Building Inspector, Justin Post, who denied the sign permit for the tenant. He explained that the original sign had deteriorated and is unusable. They redesigned it with a smaller sign, from 42 square feet in sign area and 12 feet in height, to 36 square feet in sign area and 10 feet in height, and it will be relocated on the property. Attorney Troyer and the Board reviewed the previous Special Permits regarding the sign bylaws and if the original sign is grandfathered and replaceable. Attorney Murray reviewed the current sign bylaws (2017) and stated the previous Special Permits did not reflect anything on the tenant sign in the Findings of Fact. Attorney Troyer identified the location of the tenant’s sign on the site plan and pointed out that the 2019 decision includes the original sign. This will be a reduction in size from what Cumberland Farms Inc. was allowed. Jan Morrissey questioned if this is a replacement sign and Ms. Murray stated it could be and was under the old sign bylaw. Sharon Inger stated the whole site is new construction. Frank Corbin, abutter, stated the lights are very bright at night and would like to see the signs reduced in size. Mrs. Corbin stated it appears Cumberland Farms wants permission to sell beer and wine and is concerned with additional signage. There was discussion among members that the whole property is new construction and everything should comply with the current bylaws. Attorney Troyer stated they had received permission for the tenant sign in 2019. Under the current sign bylaw, sign area has to include the width and height of the supports as well, so this sign is larger than 36 square feet. Dawn Johnson from Cumberland Farms stated they did not include the one-foot width poles. Attorney Troyer stated the original application was in 2011 which was denied, then went to Land Court, then was awarded the Special Permit in 2017 with an amendment in 2019; therefore, it is grandfathered. Ben Zehnder stated the sign was not abandoned and should be allowed. Carolyn Murray stated she identified the signs on the 2011 site plan and it appears there was one sign and one proposed sign. She did not have knowledge of the previous signs in terms of size, height, language, etc. She stated the plans submitted dated October 11, 2011 did identify the signs. Now the new sign is reduced in size and height and is permitted. The Board was polled on their thoughts regarding overturning the Building Inspector’s decision.

Manny Heyliger motioned to overturn the determination of the Building Inspector and to find that the free standing sign of Cumberland Farms’ tenant liquor store was incorporated into the ZBA’s 2017 Special Permit decision and plans such that no further zoning relief is required to replace the freestanding sign at a height of 10 feet, with a sign facade of 36 SF plus 1 foot supports on either side of the façade; seconded by Trevor Pontbriand. VOTE Manny Heyliger aye; Wil Sullivan aye; Trevor Pontbriand aye; Mick Lynch no; and Sharon Inger aye 4-1.

7:55 pm

20-11 Harold McGinn and Julia Paskauskas, 2318 State Highway (Rte 6), Map 23, Parcels 18 and 20. Application for a Special Permit under WZB 5.4.13 and 8.4.2 to allow for two principal buildings on the same lot (Cont’d). The Board consisted of Manny Heyliger, Trevor Pontbriand, Wil Sullivan, Mick Lynch and Sharon Inger. Attorney Jamie Norcross represented the applicant and gave an overview of the project. Since 1974 the property has been used for a business and dwelling. The garage was destroyed by a fire and was to be relocated to the middle of the second lot but didn’t meet front setbacks. With the lots combined, they will require a Special Permit. The new location minimizes visibility from the abutters and Route 6. There were no letters or comments. The lots have not been combined as yet and the Board would like a condition that the lots are merged and appropriate filings take place for the 81X plan. Mick Lynch moved for Findings of Fact; seconded by Trevor Pontbriand.

The lot is in the C2 District.

The property includes a single-family dwelling and is the premises for EZ Doze It Construction company. The operation has been in business on this location since 1974. A garage located on the property was lost to a fire in 2019. The applicant proposes to reconstruct the garage.

The applicant wishes to relocate the garage structure away from the boundary line of the property.

There are currently two lots on the property. The applicant proposes to combine the two lots into one and is asking for a permit to allow a second structure on the same lot under the provisions of WZBL 5.4.13

There will be no change in use.

There will be no increase in use.

The use conforms with the objectives of the C2 District as stated in WZBL 3.2

There were no appearances or correspondence either for or against the project.

The Board has found that pursuant to WZBL 8.4.2.

The proposed use is compatible with neighboring properties.

Roads, drainage, and public services are adequate.

The business contributes to the diversity or services in the area.

There is no negative seasonal impact as this is a year-round business.

The proposed structure is to the rear of the property and will not be visible from the State Highway

The proposed second structure will not be more substantially detrimental to the neighborhood than the existing use, and the applicant has demonstrated that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2.

Condition:

This permit will not take effect until the applicant has filed an 81-X confirming the combination of the two lots into one.

Manny Heyliger moved the Findings of Fact; seconded by Mick Lynch. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan aye; and Sharon Inger aye. 5-0 Manny Heyliger moved to grant the Special Permit based on the Findings of Fact; seconded by Mick Lynch. VOTE: Trevor Pontbriand aye; Wil Sullivan aye; Mick Lynch aye; Manny Heyliger aye and Sharon Inger aye 5-0.

8:20

20-12 Richard Taute, 3095 Baker Ave., Map 20, Parcel 59: Application for a Special Permit under WZB 6.1.5.1b and M.G.L. c. 40A, s.6 to construct a second floor on the pre-existing, non-conforming garage for a volumetric increase in the setbacks. (Cont’d) The Board consisted of

Wil Sullivan, Manny Heyliger, Mick Lynch, Trevor Pontbriand and Sharon Inger. Vern Hatt represented the applicant and gave an overview of the project, stating the second floor will be used as a recreation room. The new construction will be 22% of the garage volume and is about an 11% increase in both properties and not detrimental to the neighborhood. There will be a new Title V septic system. A letter was read into the record from Mr. Altman, an abutter who supports the project but does not want any conversion into living space. There was discussion regarding the potential use of the space. The garage was built in 2002 and meets the setback requirements[JM1] .

Manny Heyliger moved for Findings of Fact; seconded by Mick Lynch:

1. The application is for a Special Permit to allow for the construction of a second floor to a pre-existing garage (24' X 32') which is hereinafter referred to as “the addition”. The construction of the addition would not further increase the existing non-conformity of the setback requirements (30') but would result in a volumetric increase of 22.8 % of the existing garage within the current footprint of the garage.

2. The applicable provisions for this application under the Town of Wellfleet zoning bylaws are Section 5.4.2 (front setback 30' in R1 District), Section 6.1.5.1 b and Section 8.4.2.

3. There was one letter in support of the application.

3. Section 6.1.5.1 (b) The Board finds that the alteration is not substantially more detrimental to the neighborhood than the existing non-conforming structure.

4. Section 8.4.2.1:

A. The Board finds that the addition is suitable in that it is compatible with nearby land uses which would not be damaged by the addition.

B. The Board finds that the roads, drainage and other public utilities would not be affected by the additions.

C. The Board finds that the addition will not contribute to environmental damage.

5. Section 8.4.2.2:

Not applicable

6. Section 8.4.2.3:

The Board finds that the building and site design will not adversely affect scenic views from public ways or neighboring properties.

Manny Heyliger moved the Findings of Fact; seconded by Mick Lynch: VOTE: Mick Lynch aye; Manny Heyliger aye; Wil Sullivan aye; Sharon Inger aye and Trevor Pontbriand no. 4-1

.Manny Heyliger moved to grant the Special Permit based on the Findings of Fact with the following conditions; seconded by Mick Lynch. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand no; Wil Sullivan aye and Sharon Inger aye. 4-1

Conditions:

The permit is conditioned on the property owner or its agents making all improvements and otherwise complying with all of the matters set forth in the NOTES, 1 through 16 inclusive, on plan entitled Septic System Upgrade Plan by J. C. Ellis design, dated June 5, 2020. This condition must be satisfied within one year of the date of this approval, namely October 18, 2021.

The permit is further conditioned on the requirement that the addition not be used as additional living space and that no kitchen facilities will be installed in the addition.

9:10 pm

20-07 Starboard Tack Holdings, Inc. (Myya Beck-Baum and Thor Baum), 30 Ryder Court, Map 14, Parcel 19: Application for a Special Permit pursuant to M.G.L. c. 40A, s.6 and WZB 5.3.2, 6.1 and 8.4.2 to alter a pre-existing, non-conforming property in the Commercial zoning district by demolishing the existing two story residential use building and constructing a two story mixed use building with commercial uses on the basement and first floor levels, and two residential apartments on the second floor (Cont’d). The Board consisted of Reatha Ciotti, Jan Morrissey, Wil Sullivan, Trevor Pontbriand and Sharon Inger. Attorney Ben Zehnder represented the applicants and stated he had a discussion with Gerry Parent from the Planning Board. The Planning Board does not want to meet but will provide comments on the application by individual members of the Board and Attorney Zehnder will provide them to the ZBA. Jan Morrissey expressed concerns about this approach[JM2] . Attorney Zehnder was grateful for the responses from the DPW, Fire and Police regarding the parking on Briar Lane. He then requested a continuation to November 12, 2020. Sharon Inger stated we would need a new site plan due to the curb cuts not being allowed on Briar Lane. The Board discussed the number of continuations requested for this application and the lack of response from the Planning Board. The Board requested hard copies of any future paperwork as well as a narrative[JM3] . Bradford Williams, abutter, requested a copy of any information to be presented. The Baum’s stated they need guidance and Wil Sullivan responded that the Board is not in a position to give advice. Jan Morrissey questioned how the Board will determine the number of parking spaces and Attorney Zehnder stated they would come up with numbers. Wil Sullivan moved to continue to November 12, 2020; seconded by Jan Morrissey. VOTE: Jan Morrissey aye; Reatha Ciotti aye; Trevor Pontbriand aye; Wil Sullivan aye and Sharon Inger aye. 5-0

9:25

20-14 Paul and Patricia McDavitt, 99 Holbrook Ave., Map 20, Parcel 136, Application for a Special Permit under WZB 6.1.5.1(b) to construct an open farmer’s porch on the east side of the existing house within the front setback and construct a deck off the rear. Manny Heyliger and Trevor Pontbriand recused themselves. The Board consisted of Mick Lynch, Wil Sullivan, Reatha Ciotti, Jan Morrissey and Sharon Inger. Mr. McDavitt gave an overview of the project and stated they are meeting with the Conservation Commission as well. Wil Sullivan stated the deck in the back will increase the nonconformity within the setback by 5 feet. (10.4’ to 5’). Mr. McDavitt stated it would make an easier transition to the back stairs. Mr. McDavitt stated the majority of neighbors have no problem with the project. The Board expressed further concern with the decking at the rear due to the setbacks. There were no letters or comments for the project. The property is within the ACEC. Ms. McDavitt stated they would be willing to redesign the deck to the side of the house. Wil Sullivan moved to continue to November 12, 2020; seconded by Mick Lynch. VOTE: Wil Sullivan aye; Mick Lynch aye; Reatha Ciotti aye; Jan Morrissey aye; and Sharon Inger aye.

20-15 Charles J. Morris and Patricia A. Porter, 30 Second Street, Map 29, Parcel 434, Application for a Special Permit under WZB 8.4.2 and 6.1.5 to alter a pre-existing, non-conforming residential dwelling by increasing the previously permitted 13’ x 8’ first floor bathroom addition by 2 feet to 13’ x 10’ (work never commenced). Attorney Ben Zehnder represented the applicant. He stated this project was previously approved in 2017.

The Board consisted of Wil Sullivan, Sharon Inger, Reatha Ciotti, Trevor Pontbriand and Manny Heyliger. Mick Lynch recused himself. Attorney Zehnder stated the house will still be within the setbacks. The bathroom will be enlarged and extend 24” into the rear setback. Second Street is considered the front of the house. There were no letters or comments. Sharon Inger read the 20-05 ZBA decision permitting the office and allowing an intrusion into the rear setback, reducing it from 35.2” feet to 27’.3”. Ms. Plaue, abutter, identified the front and side of the dwelling due to the orientation. She stated the office was built on the side. The decision from a 2017 Special Permit identified the front and back setbacks. The new rear setback will be 25.3”. [JM4] The addition will be a bump out over the foundation. Manny Heyliger moved for Findings of Fact; seconded by Wil Sullivan.

The proposal is to alter a pre-existing, non-conforming residential dwelling by adding a 10-foot by 13-foot bathroom addition and to extend the existing south side second floor deck to wrap around to the top of the addition.

The lot is in the R1 District.

The dwelling is entitled to treatment as a lawfully pre-existing nonconforming structure having been built in 1988 according to the Town Assessor.

The existing non-conformities regarding the structure are inadequate lot area (7,976 s.f. where 30,000 s.f. is required), intrusion into the front setback (11.7 ft. where 30 is required), intrusion into the side setback (20.3 where 25 is required), intrusion into the rear setback (27.3 feet where 30 is required) and inadequate frontage (109.35 where 135 is required.)

The proposed alteration will maintain the front setback and will decrease the southerly setback from 20.3 feet to 19.5 feet.

The proposal will increase the existing non-conformity on the rear setback by 2 feet.

The proposal will increase lot coverage by 127 square feet to a total of 1,100 square feet, and the percentage of lot coverage from 12.2 % to 13.8%, still under the maximum lot coverage of 15%.

The use conforms with the objectives of the R1 district.

There were no appearances or correspondence in support of or in opposition to the application.

The roads, drainage, and other public services are adequate for the project.

The proposed alteration will not be more substantially detrimental to the neighborhood than the existing nonconforming structure, and the applicant has demonstrated that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2.

Manny Heyliger moved the Findings of Fact; seconded by Reatha Ciotti. VOTE: Reatha Ciotti aye; Wil Sullivan aye; Trevor Pontbriand, Manny Heyliger aye; and Sharon Inger aye 5-0

Trevor Pontbriand moved to grant the Special Permit based on the Findings of Fact; seconded by Reatha Ciotti VOTE Reatha Ciotti aye; Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye and Sharon Inger aye 5-0.

Minutes: Jan Morrissey moved to approve the amended September 10, 2020 meeting minutes; seconded by Mick Lynch. VOTE: Jan Morrissey aye; Mick Lynch aye; Trevor Pontbriand aye; Manny Heyliger aye; Wil Sullivan aye; Reatha Ciotti aye; and Sharon Inger aye. 7-0

Mick Lynch moved to adjourn at 10:00 pm; seconded by Manny Heyliger. VOTE: Jan Morrissey aye; Mick Lynch aye; Trevor Pontbriand aye; Manny Heyliger aye; Wil Sullivan aye; Reatha Ciotti aye; and Sharon Inger aye. 7-0

Respectfully submitted,

Christine Bates, Committee Secretary

Paperwork submitted:

Cumberland Farms, Inc.: Appeal of the Building Inspector’s decision filing with backup

Harold McGinn and Julia Paskauskas: Application for a Special Permit with backup

Richard Taute: Paperwork for ownership / Power of Attorney

Paul and Patricia McDavitt: application for a Special Permit and backup

Charles Morris and Patricia Porter: application for a Special Permit and backup

[JM1]Since Treavor voted against granting the special permit, should a sentence should be added regarding his concerns about neighborhood density?

[JM2]I want the record to show that I had concerns about Gerry’s proposal to send PB opinions without benefit of a public hearing.

[JM3]NOTE: I deleted the sentence below because it’s already been stated that curb cuts won’t be allowed.

[JM4]Maybe we should delete this sentence. There was a discrepancy in the math on the site plan, and we decided to just say the intrusion into the setback would increase by 2 feet, as per finding #6.