Approved ZBA meeting minutes

Final

Wellfleet Zoning Board of Appeals

November 12, 2020, 7:00 pm

Remote Meeting

Attendees:  Trevor Pontbriand, Manny Heyliger, Wil Sullivan, Andy Freeman, Reatha Ciotti, Jan Morrissey and Christine Bates, Committee Secretary

Regrets:  Sharon Inger and Mick Lynch

7:01 pm

20-17  The Mandell Family Realty Trust (C. Stevens Mandell and Gal J. Lamirande, Trustees and C. Stevens Mandell, Lauren B. Lush, Bonnie J. Sambor, Marion L. Fontaine and Dorothy G. Hebert, 41 – 43 9th Street, Map 40, Parcels 154 and 155:  Application for a Special Permit to reconstruct a single family dwelling on a non-conforming lot.  Lot had been previously developed with a single-family residence which was destroyed by a fire several years ago.  Proposed dwelling will conform to current setback criteria. (Cont’d to 12/10/20)

The Board consisted of Trevor Pontbriand, Reatha Ciotti, Wil Sullivan, Manny Heyliger and Andy Freeman.  Also in attendance was Jan Morrissey.  At the request of the applicant, Wil Sullivan moved to continue to 12/10/20; seconded by Andy Freeman.  Vote:  Trevor Pontbriand aye; Reatha Ciotti aye; Wil Sullivan aye; Manny Heyliger aye; and Andy Freeman.  5-0.

7:03 pm

20-18  John and Ornella Grannis,  3075 Baker Ave., Map 20, Parcel 61:  Application for a Special Permit to construct a second story on dwelling which is located on a non-conforming parcel. The Board consisted of Trevor Pontbriand, Wil Sullivan, Manny Heyliger, Jan Morrissey, and Reatha Ciotti.  Also in attendance was Andy Freeman.  The applicant requested the application be withdrawn without prejudice.  A stop work order was placed on the property.  Jan Morrissey moved to allow the applicant to withdraw without prejudice; seconded by Manny Heyliger.  VOTE:  Trevor Pontbriand aye; Reatha Ciotti aye; Wil Sullivan aye; Manny Heyliger aye; and Jan Morrissey.  5-0.

7:07 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 original Board consisted of Wil Sullivan, Reatha Ciotti, Trevor Pontbriand, Jan Morrissey and Sharon Inger.  Andy Freeman replaced Sharon Inger and stated he had read the previous meeting minutes and viewed the zoom meetings.  Manny Heyliger recused himself.  Attorney Ben Zehnder represented the applicant, and Thor and Myya Baum attended the meeting.  Attorney Zehnder stated this case has been in front of the ZBA several times and the Planning Board had not provided any comments.  A new site plan was provided identifying parking spaces on Ryder Court.  He stated there is parking available on Main Street or the public parking areas for the exercise / yoga studio.  This project will supply needed housing for the Town.  Letters from the Police, Fire Dept and DPW Dept approved of the proposed parking.   A letter from Robert and Cindy Cocivera, dated 11/11/20 was read into the record regarding the proposed parking issues.  A letter dated 5/26/20 from neighbor, Philip Richardson was read into the record which stated there is a garage which had additions constructed without a building permit.  Another letter from Richardson dated 6/13/20 stated the nonconforming garage is in violation and the lot coverage increased, as well as two additional sheds constructed without permits.  An Assessor’s property card was also attached.  Attorney Zehnder stated he was not aware of the correspondence or the construction.  He will have a discussion with the owners and the Building Inspector.  Mr. Richardson joined the zoom meeting and stated for the last 6 months the application has been advertised as being in the Commercial District and not Central District which could result in a lawsuit.  He stated the application is listed as commercial in the application on the first page and Central District on the 2nd page.  Attorney Zehnder stated he is comfortable going forward.  Mr. Richardson stated it will be the tax-payers money if there is an appeal.  Attorney Zehnder stated it would be the applicant’s risk regarding legal fees.  Lydia Vivante wanted to know if the abutters were notified of the hearing tonight and if the letters from the Cape Cod Commission and Historic Commission were reviewed.  Attorney Zehnder stated the Historic Commission imposed an 18-month demolition delay and they do not have any power with the ZBA decision.  Lydia stated the Historic Commission explores alternatives for demolition and design.  Wil Sullivan stated he does not want to get into architectural design as a member of the ZBA which is out of our jurisdiction.  Andy Freeman felt that the advertising mistake was a harmless error.

There was discussion regarding the number of parking spaces required on the property for the three apartments which result in 5 spaces.   One or two employee parking spaces as well as a handicapped parking area should also be considered which results in a total of 8 parking spots.  Signs could be located in the designated spots.  This use does not fall into specified business uses in our bylaws and Wil Sullivan questioned the residential area vs mixed use area for parking.  Brad Williams, abutter, stated Thor Construction also utilizes this property and there is activity with his employees and trucks going in and out.  He stated for an “at home business”, you can have one employee, but the Baum’s live across the street.  The business is being run off this property and outside of the zoning bylaws.  The Board discussed the parking issues in the various District Bylaws and bylaw 5.4.13 for the intensity of use, and the fact this application is for more than one principal use within the Central District.  Attorney Zehnder stated there are numerous examples of multiple uses within the Central District and that 5.4.13 is probably honored  in the breach. Wil Sullivan stated those businesses are not applying to take what is a residential use to a commercial use. There was discussion regarding a proposed juice bar and Myya stated she hoped she could open it up to the public as well as her clients.  She said there would be no seating and after further discussion, she stated she could limit it to her clients.  The topic of the garage was reopened and Thor stated he uses the garage for storage and a work shop and that his employees utilize the garage.  He stated neither the additions to the garage nor the two sheds were permitted.  The proposed lot coverage would exceed 24%.  The Board did not feel a traffic study was necessary.  The business office is run out of their house across the street.  When they bought the property, the garage was used for storage and a gardening area/center.  There will be an as-built after construction of the main building to ensure it meets the height requirements.   Mr. Bradford expressed concern with the unpermitted wood stove in the garage and safety issues.  Mr. Richardson reiterated his concerns regarding it being a residential area with so many uses, the lot coverage and violations regarding the lack of permits.    

Trevor Pontbriand summarized the list of issues which include:  Garage – unpermitted expansions including a wood stove; Parking issues; Lot coverage; and Number of uses (up to 3 residential, exercise and yoga studio, juice bar, and garage work space)

Wil Sullivan stated the Board needs to deal with all the uses and to determine if the garage should be included in the application.  Jan Morrissey expressed concern with the service trade and home business bylaws since the applicants do not live on the property.  Attorney Zehnder requested a continuation to December 10, 2020.  He will provide a full narrative of what uses are on the property and lot coverage.  Trevor Pontbriand moved to continue to December 10, 2020; seconded by Reatha Ciotti.  VOTE:  Trevor Pontbriand aye; Jan Morrissey aye; Wil Sullivan aye; Reatha Ciotti aye and Andy Freeman aye.  5-0.          

8:15 pm

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. (Cont’d)  Trevor Pontbriand and Manny Heyliger recused themselves.  The Board consisted of Wil Sullivan as Acting Chair, Reatha Ciotti, Janet Morrissey, and Andy Freeman.   Andy Freeman stated he read the minutes, watched the video and made a site visit.  A revised plan was submitted.  Paul McDavitt agreed to a 4 person Board.  He stated they redesigned the decking to reduce the setback in the rear of the dwelling.  The Board expressed their appreciation of the change.  Wil Sullivan moved for Findings of Fact; seconded by Andy Freeman.  VOTE:  Wil Sullivan aye; Andy Freeman aye; Reatha Ciotti aye; and Jan Morrissey aye.  4-0.   

FARMER’S PORCH

     1.  The application for the farmer’s porch is for a Special Permit to allow for the construction of a farmer’s porch which is hereinafter referred to as “addition 1”.  The existing house was constructed before zoning was adopted by Wellfleet and is located 22.1 feet from Holbrook Avenue where 30 feet is now required and is thus a pre-existing non-conforming structure. If approved the alteration would increase the non-conforming nature of the structure but would not increase the current non-conformity of the front setback of 22.1 feet.

    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. 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 addition 1.

      B. The Board finds that the roads, drainage and other public utilities would not be affected by addition 1.

     C. The Board finds that addition 1 will not contribute to environmental damage.

     5. Section 8.4.2.2:    Not applicable

     6. Section 8.4.2.3:  

     The Board finds that construction of addition 1 will not adversely affect scenic views from public ways or neighboring properties.

REAR DECK

     1. The application related to the rear deck is for a Special Permit to allow for the construction of a rear deck, where none currently exists, which is hereinafter referred to as “addition 2”. The existing house was constructed before zoning was adopted by Wellfleet and is located 3.5 feet from the northerly boundary and 10.4 feet (at its closest point) from the southerly boundary where 25 feet is now required and is thus a pre-existing non-conforming structure. If approved the rear deck addition would increase the non-conforming nature of the structure from 10.4 feet to 9.7 feet along the southern boundary and the deck would be within 15.8 feet of the northern boundary.

    2. The applicable provisions for this application under the Town of Wellfleet zoning bylaws are Section 5.4.2 (side setback 25' in R1 District), Section 6.1.5.1 b and Section 8.4.2.

    3. Section 6.1.5.1 (b) The Board finds that addition 2 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 addition 2 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 addition 2.

     C. The Board finds that addition 2 will not contribute to environmental damage.

     5. Section 8.4.2.2:  Not applicable

     6. Section 8.4.2.3:  

     The Board finds that construction of addition 2 will not adversely affect scenic views from public ways or neighboring properties.

Andy Freeman moved the Findings of Fact; seconded by Jan Morrisey. VOTE:  Wil Sullivan aye; Andy Freeman aye; Jan Morrissey aye, and Reatha Ciotti aye.  4-0.  Andy Freeman moved to grant the Special Permit based on the Findings of Fact; seconded by Jan Morrissey.  VOTE:  Wil Sullivan aye; Andy Freeman aye; Jan Morrissey aye and Reatha Ciotti aye.  4-0. 

 8:30 pm  

20-16  Robert Boehringer, 164 Cliff Rd., Map 24, Parcel 100:  Application for Variance within the National Seashore Park District to move dwelling back from coastal bank to within 1.4’ from the road line and the side setback from 2.9’ from the southerly property line.  The Board consisted Trevor Pontbriand, Manny Heyliger, Wil Sullivan, Jan Morrissey and Andy Freeman. Reatha Ciotti was also in attendance.  The Board made a site visit.  Mr. Boehringer stated this has been approved by the Board of Health and the Conservation Commission.  The application was sent to the Cape Cod National Seashore and we did not receive any reply.  The Board agreed this should be filed as a Variance.  Boehringer stated the house will be placed on a new foundation.  There will be 2 bedrooms on the 2nd floor and the kitchen will be enlarge and the 3rd bedroom will be moved to the basement level.  This is on a private road and the house will be placed on half of the paper road which he owns half of.  All of the abutters have signed off on road rights.  There has been no expressed concern from the Fire Department.  The passage on Cliff Rd is approximately 12’ wide.  There is no change in the configuration of the road.  Jan questioned the location of the deck.  Bob Boehringer explained the location of the house and the decking and further discussion took place regarding the easement on the road.  Andy Freeman questioned the berm and Boehringer stated he is going to extend the berm but not into the road.  He stated there is concern with run off and sand accumulation.    

Wil Sullivan moved for Findings of Fact; seconded by Manny Heyliger.  VOTE:  Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye; Jan Morrissey aye and Andy Freeman aye.    5-0.

This is an application under MGL40-A S. 10 and WZBL 8.4.3 for a variance from the side and front setbacks in order to relocate an existing residential dwelling due to coastal bank erosion.

The lot is in the National Seashore Park District.

The lot contains 5,589 square feet of land area plus 2,000 square feet of easement and is non-conforming as it is undersized.

There is an existing dwelling of approximately 972 square feet.

The applicant proposes to relocate the dwelling westward which will create non-conformities to the front setback (1 foot 5 inches from the road line) and the side setback (2 feet 9 inches from the south property line.) get change ***[JM1] 

 The applicant proposes no change in the size of the dwelling. The applicant proposes some changes to the interior layout including relocating one bedroom from the first floor to the basement.

There will be no change in use.

Pursuant to the conditions that must be met to grant a variance under WZBL 8.4.3, the board finds that:

The topography (due to the eroding coastal bank) and the location (on the Atlantic Ocean) specifically affect the structure in question, but do not affect all properties in the NSP district.

Without relief from the front property setback, the applicant would not be able to relocate the structure sufficient distance to permit safe ongoing use of the structure. This would result in significant hardship as the alternative is to demolish the structure.

Relocating the structure will not inhibit public access to adjacent properties and the applicant plans to maintain the roof line as much as possible to preserve scenic views.

Relief may be granted without nullifying or substantially derogating from the intent and purpose of the bylaw.

The applicant understands that under WZBL 8.4.3.1 the Secretary of the Interior is authorized to withdraw the suspension of his authority to acquire, by condemnation, property which is made subject of a variance or exception that in the opinion of the Secretary fails to conform or is in any manner opposed to or inconsistent with the purposes of the Cape Cod National Seashore, and that the Wellfleet Zoning Board of Appeals must give notice of any variance granted or denied within the Seashore District.

Jan Morrissey moved the Findings of Fact; seconded by Wil Sullivan.    VOTE:  Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye; Jan Morrissey aye and Andy Freeman aye.    5-0.

Andy Freeman moved to grant the Special Permit based on the Findings of Fact; seconded by Wil   VOTE:  Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye; Jan Morrissey aye and Andy Freeman aye.    5-0

Trevor Pontbriand moved to approve the amended 10/8/20 meeting minutes;  seconded by Wil, VOTE:   Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye; Jan Morrissey aye; Reatha Ciotti aye; and Andy Freeman aye.    6-0 

Wil Sullivan moved to adjourn at 9:00 pm seconded by Jan Morrissey.  VOTE:   Wil Sullivan aye; Trevor Pontbriand aye; Manny Heyliger aye; Jan Morrissey aye; Reatha Ciotti aye; and Andy Freeman aye.   6-0.

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:

Mandell Family Realty Trust, etc.  Letter requesting continuation to 12/10/20

John and Ornella Grannis:  Application for a Variance and back up

Starboard Tack Holdings, Inc:  new site plan, letters from abutters/neighbors

Paul and Patricia McDavitt:  Revised site plan

Boehringer:  Application for Variance, house drawings and site plan   

 [JM1]Chris: you’ll have to ask Trevor what is supposed to be inserted here.