Approved ZBA mtg mins

Approved

Zoning Board of Appeals

Meeting Minutes

April 20, 2017   7:00 pm

Wellfleet Senior Center

Attendees:  Roger Putnam, Bruce Drucker, Manny Heyliger, Sharon Inger, Mick Lynch, Reatha Ciotti, and Trevor Pontbriand, Building Inspector Justin Post and Christine Bates, Committee Secretary

Regrets:  Don Palladino and Sibel Asantugrul

Roger Putnam, Chair, introduced Katharine Laughlin, Town Counsel, and stated she was joining the Board for some of the hearings. 

7:00 pm

17-14  Lisa Benson, 2533 Rte 6, Map 23, Parcel 167, Application for a Special Permit under WZB 6.1.5.1, alteration of non-conforming single family residence and intrusion into setback per WZB 5.4.2.  Applicant proposes to remove current porch and construct first floor bedroom and bath within setbacks.  The Board consisted of Roger Putnam, Manny Heyliger, Mick Lynch, Sharon Inger, and Bruce Drucker.  Attorney Bruce Bierhans represented Ms. Benson and gave an overview of the proposed project.  Due to health issues, she would like a bedroom on the first floor.  The project has been approved by the Conservation Commission as well as the Historical Commission.  Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger, passed 5-0.

1. Applicant seeks to remove the current porch and construct a first floor bedroom and bath within the setbacks

1. The dwelling is a lawfully pre-existing, nonconforming structure having been built in 1920 according to the Assessor’s Office. The lot is located in the R1 district.

1. The existing non-conformities are inadequate lot area and intrusion into the front & side setbacks

1. No nearby or abutting properties will be damaged by the proposed alteration. 

1. All roads, drainage and public services are adequate for the proposed alteration. 

1. The proposed use is no more intrusive than the prior use and there will be no increase in traffic over that of the prior use.  There will be no increase in use. 

1. The proposed lot coverage increases from 4% to 6%, and the total footprint increases from 903 sf to 1,141 sf, an increase of only 238 sf.

1. The applicant has received approval and an Order of Conditions from the Town of Wellfleet Conservation Commission.  Public and private views have been considered.

1. This is a single-family residence occupied by a Wellfleet year-round resident.  The proposed use will enable the applicant to navigate her home on the first floor while struggling with a serious illness.  There was no objection from abutters.

1. There are no seasonal consequences.

1. 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.

Sharon Inger moved the Findings of Fact seconded by Mick Lynch; passed 5-0.  Mick Lynch moved to grant the Special Permit based on the Findings of Facts; seconded by Manny Heyliger passed 5-0.

7:09 PM

17-15  Curtis Felix, 2207 State Highway, Map 23, Parcel 217:  Appeal from Person Aggrieved: Building Official determined a special permit is required for Food Trucks; Board of Selectmen changed licensing process for Food Trucks on 04/13/16 stating Food Trucks were not regulated by the Zoning Bylaws and BOS shall govern the use and operation; in addition the ZBA approved site plan clearly showing the use and notice of such use was provided for 3 public hearings.

17-16  Curtis Felix, 2207 State Highway, Map 23, Parcel 217:  Appeal from Person Aggrieved:  Building Official determined prior non-conforming sign violates current section VII signs.  This is a pre-existing non-conforming sign, protected by both the SJC decision in Barron vs. Danvers and ZBA’s decision 16-02 special permit to re-establish prior use.

Special Permits 17-15 and 17-16 will be heard together.

The Board consisted of Roger Putnam, Bruce Drucker, Manny Heyliger, Sharon Inger and Mick Lynch.  Attorney Bruce Bierhans represented Curtis Felix.  He stated the applicant doesn’t dispute the ZBA regulations regarding food trucks and the Board of Selectmen determining if they are allowed.  He stated all the  applications contained the word “food truck service” on them and the term “food truck court”.  The site plans identified the location of the food trucks.  He stated in the decision there was to be no retail sales out of the commissary kitchen.  He stated the changes to the property would not allow a restaurant.  He stated he feels there was a miscommunication between the ZBA and Mr. Felix in that Mr. Felix wanted to re-establish a use of the land to sell food to the public from the food trucks.  Attorney Bierhans stated he reviewed then Building Inspector, Richard Stevens, letter regarding the filing of a special permit for the trucks, and he stated it would be a temporary road side stand.  He requested the board reestablish the use and allow the food trucks.  Regarding the sign, Attorney Bierhans stated this is a pre-existing non-conforming sign. 

Bruce Drucker stated this is an appeal from a letter written by former Building Inspector Richard Stevens dated 8/12/16 and the filing of the appeal didn’t take place until March 2017.  He provided a timeline of the property and its use.  The building was originally a private home.  In the 1970’s items were food sold from the house, then it was changed to restaurant use, the property was last used as a restaurant in 2009.  The original Special Permit hearings for Mr. Felix took place on January 7 2016.  The Board of Selectmen regulations for Food Trucks took went into effect in April 2016.  On May 10, 2016, temporary licenses were issued by the BoS to the food truck vendors, not to the land or property.  The licenses expired on 12/31/16.  A letter was issued from Building Inspector Richard Stevens on July 8, 2016 for the removal of the sign.  Another letter was sent to the applicant on August 12, 2016 from the Building Inspector to remove the sign as well as imposing a $50.00 per day fine.  In the letter Mr. Stevens recommended that Mr. Felix submit a new application for a Special Permit.  The applications for these appeals were filed on March 14, 2017.  Mr. Drucker stated there were 4 food trucks, umbrellas and tables and chairs set up for the summer season of 2016 which were permanently on the lot.

 A letter from the Wellfleet Preservation Hall committee was in support of reestablishing the business at the Felix property. 

Chair Putnam opened the public hearing to the audience:

Attorney Lawless, representing Steve Oliver, stated the language in the ZBA’s 1/7/16 decision was direct.  He stated a commissary kitchen is used for a home base for food trucks, but the food trucks are to leave the premises to sell off site.  He stated there had been an abandonment of the restaurant.  There was no restaurant operation for over 2 years and the restaurant use has been lost to the applicant.  He stated there has been an increase in activity on the property and states he feels this is an illegal expansion.  He stated the Board of Selectmen did not have the right to issue any license for a food truck use on the property. 

Kathleen Bacon stated she supported the food trucks at this location; Helen Miranda Wilson, a Board of Selectman member, stated  applicant had told the BoS he had a permit for the food trucks from the ZBA and had assumed the ZBA had approved the use of the Food Trucks and the vendors were issued licenses.  Mary Ellen Manny, of the Planning Board, feels the board should allow the food trucks on the property since the property was used as a restaurant previously.  Fred Vanderschmidt questioned if the ZBA permitted retail sales on the property.  Attorney Bierhans stated by reestablishing the use, it would allow food sales.  Justina Carlson stated this was a large investment on Felix’s part and the food court has been a nice thing for local families.  Steve Oliver stated most of the local jobs go to foreign students and are seasonal.  He stated the parking issue is of concern and there are people parking on Route 6 as well as on his property. 

Attorney Katherine Laughman stated the Board is looking at the appeals only.  She stated the Board must determine if they have the jurisdiction regarding a stop work order, which appeal is required to be filed within 30 days.  Failure to appeal within that window takes the jurisdiction away from the ZBA to entertain the appeal.  The Board must determine if the Special Permit issued at the 1/7/16 hearing gives relief for the food truck use.  If it does not encompass the use, then the ZBA needs to look at the non-conforming use.  The Board of Selectmen issued regulations for licenses; the definition of “mobile” food vending is moving and dispensing food.  There is no wording in the BoS regulations to allow the use on a lot for food trucks.  The WZBL  regulates the use of land and not the Board of Selectmen.

. 

Bruce Bierhans stated he didn’t believe the Building Inspector filed the letter with the Town Clerk and questioned if the 30-day timeframe would apply.  Attorney Laughman  replied she didn’t believe it was necessary to file at Town Hall.  Attorney Bierhans stated the C2 District allows a roadside temporary use, and Mr. Felix could do this without a special permit.  Curt Felix stated there was correspondence between him and the Building Inspector.  He stated he referenced the Baron case regarding the signs. He replied on July 15, 2017 and again on August 11, 2016.  He stated “good faith efforts” could allow reestablishment. 

The meeting was closed to the public.

The following remarks were made by members of the Board:  It was the understanding of the ZBA that the food trucks were not to remain on the property; without a permit the discontinued restaurant went from an inside use to an outside use. There was not a filing for food trucks with outside service nor permission for tables, chairs, and umbrellas.  Restaurants are not permitted in the C2 District.  It was recommended a petitioned article be submitted to Town Meeting to allow additional uses in C2.   The prior sign had not been in continuous use nor had the previous restaurant.  One of the conditions of the prior permit stated there was to be no retail sales on the property and there were parking issues on the property.  The Board was not asked to reestablish the use as a restaurant by the applicant   

Mick Lynch moved to waive the 30 day jurisdiction on the appeal of the Building Inspector’s cease and desist; seconded by Manny Heyliger; passed 5-0.  Mick Lynch moved to uphold the Building Inspector’s decision on the cease and desist on both the appeals; seconded by Bruce Drucker; passed 5-0.  Mick Lynch moved to waive any fines provided the sign be removed no later May 15, 2017; seconded by Manny Heyliger; passed 5-0.     

   8:21 pm

17-17  Curtis Felix, 2207 State Highway, Map 23, Parcel 217:  Application for a Special Permit for Food Trucks under temporary roadside stand as an accessory temporary use and not a permanent structure or a building, which is a permitted use.  The Board consisted of Roger Putnam, Bruce Drucker, Mick Lynch, Sharon Inger and Manny Heyliger.  Attorney Bruce Bierhans stated he would like to withdraw the application without prejudice.  Bruce Drucker moved to allow the application be withdrawn without prejudice, seconded by Mick Lynch, passed 5-0.

8:23 pm

17-20  Theresa Townsend, 350 State Highway, Rte 6, Map 47, Parcel 107.1:  Application for a Special Permit under WZB 5.4 and 5.4.2 to reduce Route 6 setback to 30 feet for the construction of a dwelling.  Mick Lynch recused himself.  The Board consisted of Roger Putnam, Bruce Drucker, Sharon Inger, Manny Heyliger and Trevor Pontbriand.  Theresa Townsend gave an overview of the project.  The property is now subdivided into 2 lots.  She stated the current house on Parcel 107 uses West Road as  frontage which was built in 2015.  She stated she was advised to request a special permit for frontage on Route 6 be reduced to 30 feet for the proposed dwelling.   She stated the “greenbelt” on her property was never a part of the division.  She stated DOT is reviewing he paperwork for the curb cut permit and was told she will be receiving paperwork in the near future.  She had several agencies look at her property (MESA, Conservation, etc.).  She stated she will be living in this house.  The new dwelling will share the same curb cut.  A letter from Mr. and Ms. Felix, abutters, was read into the record opposing the project.  Justin Post, Building Inspector, confirmed this property was never a part of the cluster development.  Michael Ford, abutter, felt it was a part of the development and provided a copy of a land court decision from 1933.  Frederick Felix stated this now changes his property enjoyment and the town didn’t protect the cluster development in the 1980’s.  Tanya Felix questioned if the town way will remain a green area.  The Board didn’t feel there was an issue with the setback because it is allowed by Special Permit and the applicant has made a sufficient case to reduce the setback to 30 feet.  Bruce Drucker moved for Findings of Fact; seconded by Manny Heyliger,

passed 5-0.

1. This is a request for a Special Permit under WZ B 5.4 and 5.4.2 to reduce setback from Rte 6 for the construct of a dwelling and garage.
2. The lot is of legal size.
3. The use of West Road as frontage is permitted d.f. ZBA #10-30.
4. The setback from Rte 6 is inadequate.
5. Proposed lot coverage will be 3,154 square feet or l7.3%/.
6. The use will change from vacant to residential.
7. The use is permitted in the R2 District.
8. There is objection from abutters.
9. This is not a significant development.

Bruce Drucker moved the Findings of Fact; seconded by Manny; Heyliger 5-0.  Bruce Drucker moved to grant the Special Permit  based on the Findings of Fact; seconded by Manny Heyliger; passed 5-0.

8:50 pm

17-18  Allison Gray, 27 Old Kings Highway, Map 29, Parcel 46.1, Application for a Special Permit under WZB N 5.3 for a private stable to house three (3) ponies.  The Board consisted of Bruce Drucker, Roger Putnam, Sharon Inger Reatha Ciotti and Trevor Pontbriand.  Ms. Gray gave an overview of the project.  Approval has been received from the Board of Health.  Roger Putnam moved for Findings of Fact; seconded by Sharon Inger; passed 5-0.

Sharon Inger moved the Findings of Fact; seconded by Roger Putnam; passed 5-0.  Bruce Drucker moved to grant the Special Permit based on the Finding of Fact, seconded by Sharon Inger passed 5-0.

9;00 pm

17-19  Susan Siegel and Gerry Pouliot, 210 Baker Ave., Map 14, Parcel 183:  Application for a Special Permit under WZB 6.1.5.1(b) for an expansion to existing one-story portion of the building on the west side.  Bruce Drucker excused himself and Trevor Pontbriand recused himself.   The Board consisted of Mick Lynch, Manny Heyliger, Reatha Ciotti, Sharon Inger and Roger Putnam.  Joy Cumming represented the applicant and gave an overview of the project.  The expansions will be at the rear of the property on the first floor.  There will be an increase in lot coverage and an increase into the side setback.  Mick Lynch moved for Findings of Fact, seconded by Reatha Ciotti; passed 5-0.

1. The existing structure is pre-existing, non-conforming; the original house having been built in 1825 according to the assessor’s records.
2. The existing structure is a single-family residence.
3. The existing non-conformities are intrusions into the side setbacks and lot coverage.
4. The existing parcel is non-conforming due to insufficient area and frontage.
5. The existing parcel is located partially within the Central District and partially within the R1 District.
6. The areas of proposed expansion are on portions of the structure that are single story.
7. There will be a minimal volumetric increase within the south side setback.
8. The existing lot coverage is 21.57%, and the proposed lot coverage will be 22.41%, an increase of 0.84%.
9. There are no objections from abutters.
10. There will be no increase in use.
11. The proposed expansion will not be more detrimental to the neighborhood than the existing non-conformities.

Mick Lynch moved the Findings of Fact; seconded by Sharon Inger, passed 5-0.  Mick Lynch moved to grant the Special Permit based on the Findings of Fact; seconded by Sharon Inger; passed 5-0.

Business - none

Meeting Minutes – to be reviewed at a future meeting

Trevor Pontbriand moved to adjourn at 9:10 ; seconded by Reatha Ciotti, passed 7-0. 

Respectfully submitted,

Christine A. Bates, Committee Secretary