Approved ZBA meeting minutes
Approved
Wellfleet Zoning Board of Appeals
January 27, 2022 7:00 pm
Remote Meeting
Attendees: Sharon Inger, Manny Heyliger, Trevor Pontbriand, Al Mueller, Mick Lynch, Reatha Ciotti, Wil Sullivan, Andrew Freeman, Jan Morrissey and Christine Bates, Committee Secretary.
Chair Inger called the meeting to order at 7:00 pm.
21-31 Brown, 60 A Designers Rd, Map 23, Parcel 7 A, Application for a Special Permit under WZB 6.1.5 (b) to construct a deck within the setbacks (to be cont’d to 2/24/22). The Board consisted of Trevor Pontbriand, Sharon Inger, Wil Sullivan, Mick Lynch and Jan Morrissey. Mr. Brown requested a continuation to February 24, 2022 in order to get a revised site plan to present to the Board. Mick Lynch motioned to grant the continuation to February 24, 2022; seconded by Trevor Pontbriand. VOTE: Trevor Pontbriand aye; Sharon Inger aye; Wil Sullivan aye; Mick Lynch aye; and Jan Morrissey aye. 5-0.
22-03 Rousseau, 174 Pleasant Point Ave, Map 35, Parcel 113: Application for a Variance under MGL Ch.40-A, S.10 and WZB 8.4.3 to vary from the terms of Wellfleet Zoning Bylaw Table 5.4.2 to allow a structure (fencing) closer to a side property line than 25 feet. The Board consisted of Trevor Pontbriand, Wil Sullivan, Reatha Ciotti, Sharon Inger and Al Mueller. Mick Lynch recused himself. Mr. Rousseau stated he had originally received permission from Building Inspector Justin Post and he erected a portion of the eight foot tall fencing. He provided the history of the homes in the area, stating they were built in the 1890’s and were all 2 to 3 feet above grade. If the fence were only 7 feet tall, he could see over to the other abutting properties at eye level. He listed the following hardships: financial (if he were to try and sell his property, he would not receive as much for it because the immediate abutter rents the property with more people than should be there), emotional hardship because he can’t enjoy his property without looking directly at the neighbors, and native plantings would take over 10 years to achieve an 8 foot height. Sharon Inger read two letters of support from Mr. Wright and Mr. Lenoir and one letter from Wales, Ekland and Wales objecting to the fencing due to height of fence blocking their views, no windows on Rousseau side of house towards their home, proximity of fencing is only 30” of clearance and it makes it hard for them to reach the second floor of their house from the outside, they do not want to share in the maintenance cost of the fencing, the fence blocks any breezes and sunshine in the afternoon, is within the ACEC and should be addressed by the Conservation Commission, it is a loss of value to their home with no water views, and there has not been any fencing in the past which changes the neighborhood and they should have privacy planting borders. Mr. Rousseau responded that the fence is 2 inches away from the property line and he would not request any maintenance fees.
Trevor Pontbriand stated there is no reference to fencing in the bylaws and Chair Inger responded with a 7’ fence, no one requires a permit; however, anything 8’ tall is considered a structure according to MA Building Code. It would also require to be 25 feet from the side property line. Therefore, this would be a variance request. Manny Heyliger stated this should not be allowed because it can’t meet the 25’ setback. Jan Morrissey agreed and stated the fence will not affect the noise levels or anything else. Al Mueller stated one additional foot will not make any difference and it should be allowed. Reatha Ciotti agreed with Al Mueller. Sharon Inger responded this is a structure and we don’t allow structures on the property line. The ZBA is not to be used to solve neighbor problems. Mr. Rousseau reiterated the majority of his family’s time is spent on the porch with views of the neighbor’s porch which is used as a rental unit
Board members discussed bylaw 8.4.3 granting variances.
Wil Sullivan moved for Findings of Fact; seconded by Trevor Pontbriand. VOTE: Trevor Pontbriand aye; Al Mueller aye; Reatha Ciotti aye; Wil Sullivan aye and Sharon Inger aye. 5-0.
Chair Inger read Findings of Fact; Trevor Pontbriand moved the Findings. There was no second. Mr. Rousseau requested the application be withdrawn without prejudice. Al Mueller moved to allow the application be withdrawn without prejudice; Wil Sullivan seconded. VOTE: Trevor Pontbriand aye; Al Mueller aye; Reatha Ciotti aye; Wil Sullivan aye and Sharon Inger aye. 5-0.
The Board discussed the MA Building Code definition of structures and questioned why the Building Inspector determined this was a structure.
22-02 Woods and Lemme regarding 1065 State Highway, Map 36, Parcel 184: Appeal from Person Aggrieved, MA General Laws Chapter 40A, Section 8 and 15 and Wellfleet Zoning Bylaw Section 8.4.1. Appeal of Building Commissioner authorizing the use of the site for a “Contractor’s Yard). Appeal is to reverse decision or modify the use/conditions approved in order to fully conform to the Bylaw and earlier decisions of the Board (Cont’d from 01/13/22) The Board consisted of Mick Lynch, Manny Heyliger, Jan Morrissey, Andy Freeman and Sharon Inger.
Attorney David Reid, representing those appealing the Building Inspector, stated he met with Attorney Ben Zehnder who represents the owners of the property and stated there were no resolutions. His clients want to go forward with the appeal. Attorney Zehnder stated he is working with a surveyor to get the area below 40,000 square feet to eliminate having to go before the Cape Cod Commission and wants to work with the Building Inspector and Town Counsel.
Chair Inger opened the meeting to the audience and Lou Wise and Amy Charney objected due to the criteria to be met in bylaw 5.2 regarding noise, dirt, and other detriments, feels the equipment is industrial size, bulk materials are proposed, outdoor storage is a separate use, loading materials onto trucks, etc. and it would be impossible to confine noise, dust, etc. at this site.
Attorney Reid requested to speak further on behalf of his clients. He provided history of a previous Building Inspector who ordered a cease, desist and amend for the clearing and demolishing of vegetation at the site without any permission from him. The company appealed the Building Inspector and the ZBA upheld his decision due to not meeting the criteria in the previous hearing(s). The two appeals are pending in court. In the meantime, the owners went to Victor Staley, Interim Building Inspector, and held various meetings and shared several e-mails. They provided a list of all the vehicles to be used, some with tracks and treads, there are 18 types of materials on site with no description of how much will be on the property. A letter from November 15, 2021 from Attorney Zehnder to the Building Inspector stated sand, gravel, stone, etc. would also be on the property. There will be large concrete blocks on site as well as lumber. At this point, Staley allowed the work to go forward although no formal permit was issued as the applicant considers this a use by right in the district. Reid considers this Bulk Storage. He also stated nothing should go forward until the other 2 appeals are settled in the Court. He does not feel the Interim Building Inspector should have issued his permission. This is not a small business nor a local business. He described the detriments (beeper sounds from the trucks, dust, noise, fumes, vibrations) offensive to the abutting neighborhood. The planned plantings will take up to 10 years to grow for a buffer if they are planting 15 feet apart. He stated the Board may revoke the permit for a contractor’s yard until after legal issues are resolved. He reiterated he felt Victor Staley should not have allowed this to happen at this site.
Chair Inger opened the discussion to the audience. All of the statements were in opposition to the project at this location and included the following concerns:
Company does not comply with Town rules, bylaws, destroyed trees, landscape; the wording of “premise” in the bylaw is in definition and there is no building or house on the property and doesn’t feel this meets the definition; developer has not restored the site, destroyed wildlife area and should be forced to revegetate within two years and the project should be cease and desist now; the area has changed without the trees and natural forest; vibrations within house; feels this project was planned well in advance of actual destruction to the property; home values and savings will be affected for all who live in the area; change in character of the area as well as traffic impact; the noise level will impact the abutting restaurant as well as the motel located close by; the quality of life will be lowered, there will be pollution as well as contamination; this is a visual blight, would like to see a traffic study performed before any other work continues, add a high berm with plantings around property to reduce eyesore; and there has been no mention of working hours, the number of vehicles with air brakes, and materials to be stored.
People speaking as well as those that wrote letters include:
Miranda Gooding Siemasko William Toner, Caroline Toner, Bill Iaccuessa, David Barret, Greta Wilkening, Mrs. Brown, Mr. Thimas, Jean Brown, Ms. Lemmie, Mr. Morgan, Ms. Lemme, Mr. Rose, Mr. Flaxman, L. Kozak, Peter Hall, The Woods, S. Reverby, The Franklin’s, the Williams, Pengell, Taylor, Gibbons, Jorgenson, Amy Wolf and Richard and Maureen Ramos.
Attorney Ben Zehnder stated he and Victor Staley had several discussions and he provided him with pertinent information regarding materials and vehicles as well as a site plan for the Contractor’s Yard which did not require a Special Permit. He received an e-mail stating sand and bulk materials are not intended until previous appeals are settled but concrete blocks are permissible. He stated they have received approval from the Building Inspector for the activity as a right. The removal of the trees was allowed by right.
Chair Inger asked Town Counsel Jonathan Murray’s advice and he responded the Board has to determine if the Building Inspector erred in his decision to determine this was a contractor’s yard. The mechanism is to file a decision the Town would enforce.
Wil Sullivan asked Attorney Zehnder if a contractor’s yard can become an industrial use and he responded it is the nature of the use, not size. Industry makes something. Attorney Reid stated the provisions of the bylaws set parameters and this business is already not compliant due to noise, dust and vibrations to the neighborhood. Jan Morrissey requested Jonathan Murray to define Open Bulk Storage and he responded that Victor Staley determined that materials that are now on the site, or will be, are permitted as accessory to a contractor’s yard. Jan Morrissey asked about the bylaw’s definition of transport terminal and commercial vehicles.
Chair Inger opened the discussion for the Board: Bylaws 5.2 and 6.7 set minimum standards and GWM fails to meet them in regards to noise, vibration, dust, etc; the site plan identifies sand, gravel and t-base which is bulk storage, the use of the property is already detrimental to the location; the intensity is large and the property values of the neighbors will be affected; this does not meet the district objectives and feels the Building Inspector was in error to permit this.
Mick Lynch moved for Findings of Fact; seconded by Jan Morrissey. VOTE: Manny Heyliger aye; Jan Morrissey aye; Andy Freeman aye; Mick Lynch aye; and Sharon Inger aye. 5-0.
The lot is in the commercial district.
In three earlier decisions on April 21, 2021, the Board upheld the determination of the Building Inspector that the use proposed was subject to Special Permits and denied those special permits.
Those decisions were appealed, and the case remains in Land Court.
On November 10, 2021, the Building Inspector approved the use of a “contractor’s yard” subject to certain qualifications and conditions.
There were 24 letters in support of the appeal and over 50 people at the zoom meeting in support of the appeal.
There were no appearances in opposition to the appeal.
A contractor’s yard is a permitted use in the commercial district.
WZBL defines a contractor’s yard as “premises used by a building contractor or subcontractor principally for storage of equipment and supplies, fabrication of subassemblies, or parking of wheeled equipment.
Although the applicant does intend to use the yard for storage of equipment and supplies, the applicant also proposes to store sand, loam, t-base, and stone in open storage. This would conform to the definition of bulk open storage which is defined as “bulk, storage, open – exposed outside storage of sand, lumber coal or other bulk materials and supplies, which is not included in the definition of a contractor’s yard and requires a special permit.
The applicant proposes to store and use 10 construction vehicles, several of which are not wheeled.
The construction vehicles proposed are considered heavy industrial vehicles.
WZBL defines light industry as fabrication, assembly, processing, finishing work or packaging in such a manner that noise, dust, odor, vibration, or similar objectionable features are confined to the premises and are in no way objectionable to the abutting property.
WZBL defines heavy industry as the production, assembly, processing, or manufacture which results in or would result in noise, dust, odor, vibration, or gasses or any objectionable feature that can or could be detected at any time off the premises in which located.
Heavy industry is not a permitted use in the commercial district.
As regards the bulk, open storage use, the board is mindful of WZB 5.2 which states that “permitted uses and uses authorized under special permits shall be in conformity with the provisions of Section 5.3 and shall be not be detrimental or offensive of tend to reduce property values in the same or adjoining districts by reason of dirt, dust, glare, odor, fumes, smoke, gas, sewage, refuse, noise, vibration, danger of fire or explosion, traffic congestion.
It would appear that the proposed uses would not be in conformity with the district objectives for the commercial district as defined in WZB 3.2 which is “to provide for small and moderate scale business development for local and transient service, at the same time preserving or enhancing ocean views from highway, preserving or enhancing landscaping, minimizing visibility of parked cars and avoiding creation of hazards or congestion.
The locus of the property direct abuts residential and National Seashore Districts, and the board is required to be mindful of the district objectives of abutting districts as well.
The Board has found that pursuant to WZBL 8.4.2.3:
Scenic views from public ways and developed properties have not been considerately treated
Reasonable efforts have not been made to minimize visibility of parking and service areas from public streets.
Mick Lynch moved the Findings of Fact; seconded by Andy Freeman. VOTE: Manny Heyliger aye; Jan Morrissey aye; Andy Freeman aye; Mick Lynch aye; and Sharon Inger aye 5-0.
Mick Lynch moved to Overturn the Building Inspector and revoke the permit; seconded by Andy Freeman. VOTE: Manny Heyliger nay; Jan Morrissey aye; Andy Freeman aye; Mick Lynch aye; and Sharon Inger aye. 4-1.
Business:
Wil Sullivan moved to approve the January 13, 2022 meeting minutes; seconded by Andy Freeman. Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye; Jan Morrissey aye; Sharon Inger aye; Andy Freeman aye; Al Mueller aye and Trevor Pontbriand aye. 8-0
Mick Lynch moved to adjourn at 8:10 pm; seconded by Wil Sullivan. Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye; Jan Morrissey aye; Sharon Inger aye; Andy Freeman aye; Al Mueller aye and Trevor Pontbriand aye. 8-0
Documents:
Brown: Special Permit application and letter requesting continuation
Rousseau: Application for a Variance and back up material
Woods and Lemme et. al. Appeal from Person Aggrieved application, letters from abutters