Approved ZBA meeting minutes

Meeting date:

Thursday, February 11, 2021

Approved

Wellfleet Zoning Board of Appeals

February 11, 2021 7:00 pm

Remote Meeting

Attendees: Sharon Inger, Mick Lynch, Reatha Ciotti, Trevor Pontbriand, Manny Heyliger, Wil Sullivan, Andrew Freeman, and Jan Morrissey

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

7:00 pm

21-02 Jeremy Young, 140 Commercial Street, Map 21, Parcel 86, Application for a Special Permit to construct a contractor’s shop/garage in the site of a demolished building that held Inn / B & B rooms under WZB 5.3.1 and 6.23. (Cont’d) The Board consisted of Wil Sullivan, Trevor Pontbriand, Manny Heyliger, Mick Lynch, and Sharon Inger. Also in attendance were Andrew Freeman, Jan Morrissey and Reatha Ciotti. Jeremy Young stated he had supplied an updated site plan and calculations of living space and garage dimensions. Jan Morrissey, who participated with the Planning Board in creating WZB 6.23, provided an in-depth description of the bylaw. The Board and Mr. Young discussed the number of employees, the number of trucks and axles, the personal space used by Mr. Young, and the square footage of the proposed contractor’s shop/garage. After the land is graded, the roofline elevation of the garage will be 28’. There was discussion regarding the property and that the garage would not be a detriment to the neighborhood. Mr. Young stated he has had the business for 17 years at this location. Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger. Further discussion took place regarding principal dwelling and personal space which would include the Inn. It was concluded that 30% could be utilized for the contractor’s shop/garage.

Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger. [SI1]

1. The applicable provisions for this application under the Town of Wellfleet Zoning Bylaws are Section 5.3.1, Section 6.23 and Section 8.4.2. In addition, the applicable definitions of “Service Trade Home Business”, “Accessory Use” under Wellfleet Zoning Bylaws Section 2.1 entitled Definitions are relevant in reviewing this application.

2. The purpose of the STHB bylaw is to allow by special permit the use of one’s residence and associated land for a home business as an Accessory Use.

3. Accessory Use as defined in Section 2.1 as a use customarily incidental and subordinate to the principal use of building and located on the same lot with such principal use of building.

4. Section 8.4.2 provides that the zoning Board of Appeals shall not grant a special permit unless it finds that the benefits of the proposal to the town will outweigh any adverse effects on the town of the vicinity, taking into consideration the stated district objectives.

15. The district objectives in the Residential 1 District is to provide moderate density residential environment.

16. Section 8.4.2.1:

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

B. The Board finds that the roads, drainage, and other public utilities are sufficient to support the applicant’s proposed use.

C. The Board finds that the site for the proposed use will not contribute to environmental damage.

17. Section 8.4.2.2: The Board finds that the proposed use will not materially impact peak congestion but otherwise will not contribute to diversity of services, housing opportunities or year-round employment.

18. Section 8.4.2.3: Not Applicable

19. The applicant has agreed that the following conditions will attach to any approval that may be given by the Wellfleet ZBA:

A. The applicant must comply with the requirements and standards of Wellfleet Zoning Bylaw 6.23.2 Sections A. through J. inclusive.

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

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

8:15 pm[JM2]

21-04 Sarah Robin, 29 Briar Lane, Map 14, Parcel 26: Application for Exemption, Flood Hazard District Regulations. Hearing 21-05 will be heard at the same time. The Board consisted of Manny Heyliger, Mick Lynch, Trevor Pontbriand, Reatha Ciotti and Sharon Inger. Wil Sullivan recused himself. Also at the table were Andy Freeman and Jan Morrissey. Please refer to ZBA 21-05 which was combined with this hearing.[SI3] Manny Heyliger moved for Findings of Fact; seconded by Mick Lynch[JM4] . VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Reatha Ciotti aye and Sharon Inger aye. 5-0.

The Conservation Commission has issued an Order of Conditions for the project, and the applicant will build pursuant to the commission’s conditions.

The proposed alteration will not result in increased flood heights, decreased flood storage capacity, additional threats to public safety, extraordinary public expense, cause fraud on or victimization of the public, or conflict with any existing local laws.

The project will comply in all respects with the State Building Code, including the requirements of Section 744.0 regarding flood zones.

Mick Lynch moved the Findings of Fact; seconded by Manny Heyliger. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Reatha Ciotti aye and Sharon Inger aye. 5-0. Mick Lynch moved to grant the Exemption, Flood Hazard District Regulations permit; seconded by Manny Heyliger. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Reatha Ciotti aye and Sharon Inger aye. 5-0.

7:50 pm

21-05 Sarah Robin, 29 Briar Lane, Map 14, Parcel 26: Application for a Special Permit pursuant to M.G.L. c. 40A s. 6 and WZB 6.1 to intensify a pre-existing non-conformity by constructing an addition to an exterior deck and installing a bar. The Board consisted of Manny Heyliger, Mick Lynch, Trevor Pontbriand, Reatha Ciotti and Sharon Inger. Wil Sullivan recused himself. Also in attendance were Andy Freeman and Jan Morrissey. Attorney Ben Zehnder represented the applicant and stated this will be a deck addition with an awning and will be 23’ x 23’ on the north and east side for additional outside dining. The deck will be closer to the side setback. There will be minimal disturbance to the ground. This has been approved by the Conservation Commission. The proposed deck will not encroach further into the setback. It will not increase the restaurant seating limit. Ms. Robin will be required to get yearly approval for outdoor entertainment from the Select Board. Kathleen Bacon expressed concern with the number of parking spaces as well as the existing inside seating. Ms. Robins anticipates putting 15 tables on the deck with ample space between the seating to ensure safety for customers. The bar will help the servers with more space. There was further discussion regarding noise issues in the neighborhood and there are laws in place for enforcement if there are problems.

Manny Heyliger moved for Findings of Fact; seconded by Mick Lynch. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Reatha Ciotti aye and Sharon Inger aye. 5-0

The lot is partially in the Central District and partially in the R1 district.

The structure is lawfully pre-existing, non-conforming having been built in 1963 according to the Assessor’s Office.

The existing non-conformities regarding the structure are inadequate upland lot area and frontage and intrusion into the side setback (8 feet where 25 feet is required.)

The proposed addition will extend the deck on the westerly side. There will be no further intrusion into the side setback.

The use conforms with the objectives of the CD/R1District as stated in WZBL 3.2

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

There was one appearance in opposition to the application.

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

The project has received approval from the Conservation Commission/Board of Health.

The Board has found that pursuant to WZBL 8.4.2.1:

The neighborhood around the locus includes commercial, retail and residential uses which will not be damaged by the proposed project.

The property is on Briar Lane, a paved road with adequate pedestrian and vehicle access. It has adequate drainage and access to other public services.

The applicant is not aware of any site sensitivity to environmental damage. There will be no construction in the adjacent wetland.

The Board has found that pursuant to WZBL 8.4.2.2 that the proposal will contribute to the diversity of services by allowing additional outdoor dining space.

Pursuant to WZBL 8.4.2.3 that the addition will make no changes that would affect these criteria.

The proposed alteration will not be more substantially detrimental to the neighborhood than the existing nonconforming structure and use[JM5] [SI6] ., 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

The bar to be installed will be a service bar only with no seating at the bar.

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

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

8:40 pm

The Board consisted of Trevor Pontbriand, Wil Sullivan, Manny Heyliger, Mick Lynch and Jan Morrissey. Also in attendance were Reatha Ciotti, Andy Freeman and Sharon Inger. Jan Morrissey disclosed she lives on Indian Neck but is not an immediate abutter. Mr. Weisman stated the existing deck is non-conforming and needs to be replaced. The front yard setback will decrease from 29.6 feet to 27.3 feet. One letter in support was read into the record. This [SI7] project was approved by the Conservation Commission.

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

This is an application for a Special Permit to allow for the replacement of an uncovered deck with a slightly larger uncovered deck (hereafter referred to as “the addition”) within the front setback.

The dwelling is entitled to treatment as a lawfully pre-existing, nonconforming structure having been built in 1964 according to the Assessor’s Office.

The dwelling is pre-existing, non-conforming as to minimum front yard setback distance (29.6 feet at closest point to Fox Island Road where 30 feet is required).

The dwelling is built on a lawfully, pre-existing, nonconforming lot in the Residential 1 (R1) zoning district (19,871 square feet where 30,000 is required).

The ZBA has inspected the property and has reviewed all plans, drawings and other documents submitted with the application.

The applicable provisions for this application under the Town of Wellfleet Zoning Bylaws (WZBL) are sections 5.4.1 Minimum Lot Requirements (30,000 square feet in R1 District); 5.4.2 Minimum Yard Requirements (front setback 30 feet in R1 District); 6.1.5.1(b) alteration of a non-conforming single -family dwelling which increases the non-conformity; and 8.4.2 special permit granting criteria.

The addition will increase the intrusion into the front setback by 2.3 feet (27.3 feet where 30 feet is required).

There will be no volumetric increase.

The addition will increase building coverage from 6.5 percent to 6.8 percent (15 percent lot coverage is allowed).

There will be no change in use.

There will be no increase in use.

The project received a negative determination from the Conservation Commission on 11/24/20 (No further action required).

There was one letter in support of the application.

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

There was no objection from the abutters.

WZBL 3.2: The Board finds that the use conforms with the objectives of the R1 District as stated in WZBL 3.2

WZBL 6.1.5.1 (b): The Board finds that the addition will not be substantially more detrimental to the neighborhood than the existing non-conforming deck.

WZBL 8.4.2: The Board finds that the applicant has demonstrated that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity; that the addition will not contribute to environmental damage; that the roads, drainage, and other public services are adequate for the addition; that the addition will not affect diversity of services or housing opportunities or have seasonal consequences; and that there will be no adverse effect on scenic views, existing parking areas, or traditional public access to or along the shoreline.

Manny Heyliger moved the Findings of Fact; Mick Lynch seconded. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan aye and Jan Morrissey aye. 5-0. Mick Lynch moved to grant the Special Permit based on the Findings of Fact; seconded by Jan Morrissey. VOTE: Trevor Pontbriand, aye; Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye and Jan Morrissey 5-0.[JM8]

8:30 pm

21-07 Todd and Lori LaBarge, 195 Briar Lane, Map 13, Parcel 119: 0-17 Application for a Special Permit under WZB 5.4.2 and 5.4.4 to turn 3rd story attic space into habitable space.

The Board consisted of Manny Heyliger, Mick Lynch, Wil Sullivan, Trevor Pontbriand and Sharon Inger. Also in attendance was Andy Freeman, Reatha Ciotti and Jan Morrissey. Mr. LaBarge stated they wanted additional habitable space and there will only be interior changes. The existing building is within the setback and this will increase the habitable area. The Board discussed and agreed that this application was not necessary as this is a “by right” project. Mick Lynch moved that this application does not meet the bylaw requirements and that the applicant be refunded the application fee; seconded by Manny Heyliger. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan and Sharon Inger[JM9] . 5-0

8:35 pm

21-08 Kelly Chapman Medeiros, 270 Holbrook Ave., Map 14, Parcel 168, Application for a Special Permit pursuant to WZB 6.1.5.1 (b) to rebuild a one bedroom cottage where the last cottage was. The Board consisted of Wil Sullivan, Trevor Pontbriand, Sharon Inger, Reatha Ciotti, and Manny Heyliger. Also in attendance were Jan Morrissey, Andy Freeman and Mick Lynch. Ms. Medeiros stated the original structure was a two-bedroom cottage and the new cottage will be a one-bedroom cottage. There will be no change in use. There was approval from the Conservation Commission for the project and approval from the Board of Health regarding septic. There is an increase in the side setback at 19.4’ where 25’ is required. The cottage has been used as a year-round-rental. This is a grandfathered cottage having been built in the 1940’s. The original cottage has been removed. Manny Heyliger moved for Findings of Fact; seconded by Reatha Ciotti. VOTE: Wil Sullivan aye; Trevor Pontbriand aye; Sharon Inger aye; Reatha Ciotti aye; and Manny Heyliger aye 5-0.

1. The application is for a Special Permit to allow for the proposed cottage to be constructed in place of an existing cottage that was constructed in 1945.

2. The property of the applicant contains a total of 16,540 ft.² and is located in the R1 zone where 30,000 ft.² is now required. The existing cottage to be removed is non-conforming in that the rear setback required is 30 feet and part of the existing cottage is located 19.4 feet from the rear property line. The maximum building coverage in the R1 zone is 15% and the building coverage currently existing is 19.5%.

3. The proposed cottage to be constructed is 780 ft.² in size and replaces the existing cottage which is 766 ft.² in size.

4. The razing of the existing cottage and the construction of the proposed cottage would result in an increase in lot coverage from 19.5% to 19.6%.[JM10] [SI11]

5. The construction of the proposed cottage will reduce the current non-conforming rear setback along much of the easterly side of the proposed cottage but would result in a small decrease of .1 feet (19.5 to 19.6) in the non-conformity of the rear setback at the northeast corner of the new proposed cottage.

6. The applicant has received approval from the Conservation Commission.

7. The applicable provisions for this application under the Town of Wellfleet Zoning Bylaws are Section 5.4.2 (minimum lot size, minimum yard requirements and maximum building coverage), Section 6.1.5.1 b and Section 8.4.2.

7. Section 8.4.2.1:

A. The Board finds that the proposed cottage is compatible with nearby land uses which would not be damaged.

B. The Board finds that the roads, drainage and other public utilities would not be affected by the construction of the proposed cottage.

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

D. Section 8.4.2.2:

The Board finds that the construction of the proposed cottage contributes to housing opportunities.

E. 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.

8. Section 6.1.5.1 (b) the Board finds that the replacement of the existing cottage by the proposed cottage is not substantially more detrimental to the neighborhood than the existing non-conforming structure.

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

9:35 pm

21-09 Zachary Ment for The Old Bank LLC, 10 Main Street, Map 15, Parcel 1: Application for a Variance pursuant to WZB 7.6.2 to allow signage on property facing Route 6.

The Board consisted of Manny Heyliger, Mick Lynch, Trevor Pontbriand; Wil Sullivan and Sharon Inger. Also in attendance was Jan Morrissey, Andy Freeman and Reatha Ciotti. The Board advised Mr. Ment that variance request must meet certain standards and his request does not meet the criteria. The property does not have access to Route 6 nor is it the Commercial District. Zachary Ment requested the application be withdrawn without prejudice. Mick Lynch moved to allow the application be withdrawn without prejudice; seconded by Manny Heyliger. VOTE: Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan aye and Sharon Inger aye. 5-0.

8:50 pm

19-12 Amendment: Zachary Ment for The Old Bank LLC, 10 Main Street, Map 15, Parcel 1: Request for Finding of Fact 4 to read marijuana retailer shall be located within the larger existing structure on the property which consist of a 2,000 s.f. two story wood frame main building and approximately 360 s.f. one-story auxiliary building. The auxiliary building may also be occupied by the marijuana retailer or be sublet for another general retailer and; and amend Findings of the Development of significant impact pursuant to 6.3.13 to read applicant provides parking for 20 vehicles, including two handicapped parking spaces; the Planning Board did not provide a recommendation; and pursuant to WZB 6.3.1 the proposed use, as a retail business requires two spaces per establishment or one space for 150 square feet of floor area, plus one space for each three employees or nearly multiple thereof. The proposed uses will occupy 1590 s.f. as retail space and an additional 732 as office space and requires 16 spaces for the retail and office spaces and 3 spaces for employees. The Board consisted of Manny Heyliger, Mick Lynch, Trevor Pontbriand, Wil Sullivan and Sharon Inger. Also in attendance were Jan Morrissey, Andy Freeman and Reatha Ciotti. Zachary Ment stated the main building will be utilized as a Marijuana Retail Store and he would like the second building for another retail use in the future. During the Covid Pandemic, he would like the flexibility to put windows in that building to serve patrons marijuana products. This application is to add additional parking as well. The Planning Board reviewed the application and voted 4-1 with the recommendation[JM12] [SI13] there be one access and one egress properly marked with signage. There was discussion regarding the history of the property and the many uses there have been. Mr. Ment stated he would like to be able to have the use of the other building for future retail other than marijuana. The parking will increase from 14 to 20 spaces. Mr. Ment stated he envisions a boutique store selling health merchandise which would be under his ownership. Discussion took place about traffic safety. Mr. Ment stated the discussion with the Planning Board entailed the potential bike path in front of the property. Manny Heyliger moved for 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.

This[ is an application to amend special permit 19-20.

Specifically, the Board amends the language of finding 4 which currently reads:

“The marijuana retailer shall be located within the larger existing structure on the property, which consists of a 2,000 square foot two-story wood frame main building and approximately 360 s.f. of one-story auxiliary building, connected by a wooden deck and surrounded by a large gravel parking area with railroad tie borders.”

To read:

The auxiliary building may also be occupied by the marijuana retailer or be sublet to another general retailor. In any case, the auxiliary building will be used for retail purposes.

The Board further amends its findings in connection with the approval of the development of significant impact pursuant to 6.3.13 which currently reads:

1. The applicant provides parking for 14 vehicles, including two handicapped spaces.

2. The Planning Board did not provide a recommendation; and

3. Pursuant to Section 6.3.1 of the By-law, the proposed use, as a retail business under the By-Law requires two spaces per establishment or one space for each 150 Square feet of floor area, whichever is larger, plus on space for each three employees or nearest multiple thereof. The proposed use will occupy 1,162 s.q. as per plans filed with the Board and requires 8 spaces for the retail establishment and 2 spaces for employees.

To read:

1. The applicant provides parking for 20 vehicles, including two handicapped spaces.

2. The Planning Board has reviewed and recommended the plan except for the access and egress plan, and

3. Pursuant to Section 6.3.1 of the By-law, the proposed use, as a retail business under the By-Law requires two spaces per establishment or one space for each 150 square feet of floor area, whichever is larger, plus one space for each three employees or nearest multiple thereof. The proposed use(s) will occupy 1,590 s.f. as retail space and another 732 as office space as per plans filed with the Board, and requires 16 spaces for the retail and office spaces and 3 spaces for employees.

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

9:40 pm

21-10 Nora Reese and Casey Clark, 45 Slow Turtle Way, Map 29, Parcel 25: Application for a Special Permit pursuant to WZB 6.1.5.1 (b) for a volumetric increase to the detached cabin/studio by constructing a second story. The Board consisted of Manny Heyliger, Mick Lynch, Wil Sullivan, Trevor Pontbriand and Sharon Inger. Also in attendance were Jan Morrissey, Andy Freeman and Reatha Ciotti. The applicant e-mailed a request to withdraw the application without prejudice. Manny Heyliger moved to allow the application be withdrawn without prejudice; seconded by Mick Lynch. VOTE: Manny Heyliger aye; Wil Sullivan aye; Trevor Pontbriand aye; Mick Lynch aye; and Sharon Inger aye. 5-0.

Jan Morrissey moved to approve the amended January 14, 2021 meeting minutes; seconded by Wil Sullivan. VOTE: Jan Morrissey aye; Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Andy Freeman aye; Reatha Ciotti aye; and Sharon Inger aye. 8-0.

Chair Inger reported Al Mueller has applied for the alternate position on the Board which will go before the Select Board.

Mick Lynch moved to adjourn at 9:45 pm; seconded by Wil Sullivan. VOTE: Jan Morrissey aye; Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye; Trevor Pontbriand aye; Andy Freeman aye; Reatha Ciotti aye; and Sharon Inger aye. Passed 8-0.

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:

Shields: ZBA application and back up materials

Stefani: ZBA application and back up materials

Young: ZBA application and back up materials

Mandell: ZBA application and back up materials, Town Council opinion, Richard Stevens letter of Jan. 5, 2021, Moriarty Troyer & Malloy LLC letter of Jan 5, 2021, Timeline of events for property

Starboard Tack Holdings, Inc: no new material was provided