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Approved ZBA mtg mins

Meeting date: 
Thursday, June 15, 2017

APPROVED

Zoning Board of Appeals

Meeting Minutes

June 15, 2017:00 pm

Wellfleet Senior Center

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

Regrets:  Don Palladino and Sibel Asantugrul

7:00 pm

17-25   Timothy Sayre and Terri Lynn Granger-Sayre, 230 Briar Lane, Map 13, Parcel 74,  Application for a Special Permit under WZB 6.1.5 and 8.4.2 and M.G.L. C40A, s6 to alter/extend/change a pre-existing nonconforming single-family dwelling by relocating and lifting the dwelling on a new foundation by  constructing an addition.  Attorney Andrew Singer represented the applicants.  The Board consisted of Roger Putnam, Manny Heyliger, Bruce Drucker, Mick Lynch, and Sharon Inger.  Peter McDonald, architect, accompanied Attorney Singer.  Attorney Singer stated a portion of the original house will be removed and relocated.  The height of the house is 30’ 1” tall.  It was built in 1855 and has been in the family since 1865.  The status of the house predates all zoning bylaws.  The new house will be 24.4’ setback from Briar Lane.  The house will be on a foundation and will be 31’ 7” due to the topography.  There will be no change in density or use.  The new design will be within the current historical design.  The shed will be removed and the lot coverage will be 3.5%.   The two trees will be saved on the Briar Lane side.  There will be an upgraded septic system.   The siding will be replaced due to lead in the paint.  Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger; passed 5-0.

  1. Applicants seek a special permit to remove the one-story wing of the single-family dwelling & to lift the northern portion of the dwelling onto a new foundation
  2. The Board has made a site inspection of the property and has reviewed the plans & drawings.
  3. The dwelling is a lawfully pre-existing nonconforming structure in the Residential zoning district having been constructed in approximately 1860 according to the assessor’s records.
  4. The nonconformities consist of intrusion onto the front setback and the height of the building exceeds 28 feet.
  5. The proposed alteration will increase the building lot coverage from 2.8% to 3.5% which is within the allowable lot coverage; the height of the building will be increased by approximately 18 inches from approximately 30’1” to approximately 31’7”; the intrusion into the front setback will be slightly less; and, the dilapidated middle shed will be removed.
  6. There will be no change in use.
  7. There were no appearances or correspondence in support of the application.
  8. There were no appearances or correspondence in opposition to the application.
  9. 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 Sharon Inger; passed 5-0.  Mick Lynch moved to grant the Special Permit based on the Findings of Fact; seconded by Manny Heyliger, passed 5-0.

7:25 pm

17-26  Janet Simmons and Karen Hayes, 2370 State Highway, Map 23, Parcel 21:  Application for a Special Permit under 5.4.1 for relief from lot size and 5.4.2 relief from front and side setbacks for proposed studio.  The Board consisted of Roger Putnam, Sharon Inger, Reatha Ciotti, Trevor Pontbriand and Manny Heyliger.  Alfred Pickard represented the applicant.  The lot coverage will be 4.5 %.  The decks and above ground pool are not lot coverage; but if included would be 6.8%.   The reason the studio will be located closer to the road is because of the change in elevation.  This is a residential use.  This will be a one-story structure with a basement under it.  The abutter on the south has no objection.  The lot is undersized so a new nonconformity can be filed because it is in the C2 district.  Manny Heyliger moved for Findings of Fact; seconded by Reatha Ciotti; passed 5-0.

  1. This is an application for a Special Permit under WZB 5.4.1 for relief from lot size and under WZB 5.4.2 from front and side setbacks for a proposed detached studio.
  2. The lot is located in the C2 District.
  3. The house was built in 1991, according to the records in the Assessor’s office.
  4. There will be a change in use by adding the pottery studio.
  5. There will be an increase in lot covered from 4% to 6.8%.
  6. This additional use conforms to the objectives of the C2w District.
  7. The use contributes to the diversity of services available.
  8. There will be an intrusion into the front yard setback of 19 feet, leaving a setback of 31 feet.
  9. There will be an intrusion into the side yard of 14 feet, leaving a side yard setback of 21 feet.
  10. There are no objections from abutters.
  11. There will be an increase of © 352 cubic feet within the side and front yard setbacks.
  12. This addition of a studio will not be more substantially detrimental to the neighborhood than the present structures.
  13. This is not a significant development.

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

7:35 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 Board of Selectmen 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 (Cont’d from 04/20/17 for Findings of Fact and Decision).  Voting members of Special Permit 17-15 and 17-16 were:  Bruce Drucker, Roger Putnam, Manny Heyliger, Sharon Inger and Mick Lynch.  Chair Roger Putnam stated there will be public comments and the Board will consider the Findings of Fact.

General Findings

  1. Mr. Felix is the owner of Property located at 2207 State Highway, Map 23, Parcel 217 (the “Property”).
  2. The Property is located in the C-2 Zoning District.
  3. By decision dated January 20, 2016 (the “ 2016 Decision”), Mr. Felix obtained a Special Permit from the Zoning Board of Appeals under Section 6.1.4 of the WZB to re-establish a prior non-conforming use on the Property.
  4. The Board’s 2016 Decision found that the Property was formerly the site of a 95-seat capacity restaurant, which is not a permitted use in the C-2 Zoning District.
  5. The restaurant use at the Property had been abandoned for over two years at the time of the 2016 special permit application.
  6. The Board’s 2016 Decision granted a special permit under Section 6.1.4 of the WZB allowing the use of the Property for two apartments, two offices, and a commissary kitchen.  The Board additionally granted a permit to allow more than one principal use on the Property under WZB 5.4.13.
  7. The Board’s 2016 Decision found that the commissary kitchen would be used by approximately 5 food trucks, which would “sign up for a dedicated time frame for the use” of the kitchen. 
  8. The Board’s 2016 Decision specifically states that there was to be no retail sales of food to the public on the Property.
  9. Mr. Felix did not disclose to the Board at the time he sought a Special Permit to re-establish the prior use that the food trucks using the commissary kitchen were going to be engaged in the retail sale of food to the public directly on the Property.
  10. The Board’s 2016 Decision, which did not address any of the parking or traffic concerns that would be attendant to on-site sale of food to the public, did not authorize Mr. Felix to allow food trucks to park on the Property and sell food to the public for consumption on the premises at picnic tables installed for those purposes.

Findings Specific to Petition 17-15 –  Appeal of Enforcement Order Concerning Use of the Property for Food Trucks

  1. In the late spring of 2016 food trucks began operating on the Property. 
  2. The food trucks engaged in the retail sale of food to the public directly from the Property and did not leave the premises during the annual 2016 tourist season.
  3. Mr. Felix installed picnic tables and umbrellas on the Property for customers purchasing food from the food trucks to sit and consume food on the Property.
  4. On August 12, 2016, the former Building Inspector sent correspondence to Mr. Felix informing him that the food trucks operating on the Property were not an allowed use under the WZB and that a special permit must be obtained under Section 5.4.13 of the WZB, in accordance with Section 8.4.2 of the WZB.
  5. Mr. Felix did not appeal the August 12, 2016 order of the Building Inspector or apply for a special permit until March 6, 2017, which was outside the required 30-day appeal period under G.L. c.40A, §15. 
  6. The use of the Property for on-site retail sale of food to the public from food trucks is not an allowed use in the C-2 Zoning District.
  7. The use of the Property for on-site retail sale of food to the public from food trucks is not a grandfathered, non-conforming use, as any prior restaurant use was abandoned by the prior owner of the Property.
  8. The Board’s 2016 Decision re-establishing prior use on the Property is limited to the specific uses described in that Decision and does not include the on-site retail sale of food to the public from food trucks.

Decision  - Petition 17-15

The Board voted 5-0 to waive the 30-day appeal period under G.L. c.40A, §15, which requires that an aggrieved person file an appeal with the Zoning Board of Appeals within 30 days from the date of the order or decision which is being appealed, and to proceed with consideration of the appeal on its merits. 

The Board voted 5-0 to uphold the Building Inspector’s August 12, 2016 Order, finding that the operation of food trucks on the Property is neither (1) an allowed use under either the WZB; (2) a use protected as a grandfathered pre-existing, non-conforming use; nor (3) a use authorized by the January 20, 2016 special permit issued by the Board for purposes of re-establishing a non-conforming use on the Property. 

17-16  Curtis Felix, 2207 State Highway, Map 23, Parce4l 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 (Continued from 04/20/17 for Findings of Fact and Decision)

General Findings

  1. Mr. Felix is the owner of Property located at 2207 State Highway, Map 23, Parcel 217 (the “Property”).
  2. The Property is located in the C-2 Zoning District.
  3. By decision dated January 20, 2016 (the “ 2016 Decision”), Mr. Felix obtained a Special Permit from the Zoning Board of Appeals under Section 6.1.4 of the WZB to re-establish a prior non-conforming use on the Property.
  4. The Board’s 2016 Decision found that the Property was formerly the site of a 95-seat capacity restaurant, which is not a permitted use in the C-2 Zoning District.
  5. The restaurant use at the Property had been abandoned for over two years at the time of the 2016 special permit application.
  6. The Board’s 2016 Decision granted a special permit under Section 6.1.4 of the WZB allowing the use of the Property for two apartments, two offices, and a commissary kitchen.  The Board additionally granted a permit to allow more than one principal use on the Property under WZB 5.4.13.
  7. The Board’s 2016 Decision found that the commissary kitchen would be used by approximately 5 food trucks, which would “sign up for a dedicated time frame for the use” of the kitchen. 
  8. The Board’s 2016 Decision specifically states that there was to be no retail sales of food to the public on the Property.
  9. Mr. Felix did not disclose to the Board at the time he sought a Special Permit to re-establish the prior use that the food trucks using the commissary kitchen were going to be engaged in the retail sale of food to the public directly on the Property.
  10. The Board’s 2016 Decision, which did not address any of the parking or traffic concerns that would be attendant to on-site sale of food to the public, did not authorize Mr. Felix to allow food trucks to park on the Property and sell food to the public for consumption on the premises at picnic tables installed for those purposes.

Findings Specific to Petition 17-16 –  Appeal from Enforcement Order for Signage

  1. Mr. Felix installed a separate sign on the Property, which specifically advertised the on-site food truck use and the sale of food to the public. The sign stated “Eat at the Fleet.”
  2. On July 8, 2016, the former Building Inspector sent correspondence to Mr. Felix ordering the removal of a sign advertising the food truck use on the Property on the grounds that the sign exceeds the dimensional controls under Section 7.3.2 of the WZB.
  3. Section 7.3.2 allows a maximum of 24 square feet of total sign area, including the main business sign, which shall not exceed 12 square feet in area, and all accessory signs, including temporary signs.
  4. On August 3, 2016, the former Building Inspector again sent correspondence to Mr. Felix ordering the removal of the illegal sign on the Property and began assessing fines of $50 a day under Article XI, Section 1 of the General Bylaw.
  5. Mr. Felix did not appeal either the July 8, 2016, or the August 3, 2016 order from the Building Inspector until March 6, 2017, which was outside the 30-day appeal period under G.L. c.40A, §15.
  6. The sign installed on the Property to advertise the food truck use is in violation of Section 7.3.2 of the WZB in that it exceeds the allowed maximum area for commercial signs in the C-2 Zoning District
  7. The sign is not protected from compliance with the WZB as a non-conforming structure or use on the Property.

Upon motion duly made and seconded the Board voted 5-0 to approve the Findings

  •  

Decision –  Petition 17-16

 

Te Board voted 5-0 to waive the 30-day appeal period under G.L. c.40A, §15, which requires that an aggrieved person file an appeal with the Zoning Board of Appeals within 30 days from the date of the order or decision which is being appealed, and to proceed with consideration of the appeal on its merits. 

The Board voted 5-0 to uphold the Building Inspector’s July 8, 2016 and August 3, 2016 Orders, finding that the sign is in violation of Section 7.3.2 of the Zoning Bylaw.

The Board voted 5-0 to waive any fines assessed by the Building Inspector for failure to remove the sign, provided the sign is removed from by Property by May 15, 2017.

Roger Putnam moved the two hearings are closed; seconded by Sharon Inger; passed 5-0.

Business

Roger Putnam stated we received letters from the various departments/committees regarding the 40B project.  The Fire Chief expressed great concern regarding the access road as well as a water tank.  Roger stated we should have a document from Ted Malone ensuring payment for the peer review which will be prepared by Judi Barrett.  Roger requested the Cape Cod Commission perform the traffic study.  It is recommended there be an informal discussion with the Housing Authority to look at alternative access to the property. 

Bruce Drucker met with the Town Administrator and Brian Carlson will be working with the ZBA reviewing all ZBA applications to ensure all paperwork is complete. 

Meeting Minutes

03/16/17:  Bruce Drucker moved to approve the amended 03/16/17 meeting minutes; seconded by Mick Lynch; passed 5-0.

04/06/17: Roger Putnam moved to approve the amended 04/02/17 meeting minutes; seconded by Sharon Inger; passed 5-0.

04/20/17:  Roger Putnam moved to approve the amended 04/20/17 meeting minutes;  seconded by Manny Heyliger; passed, 7-0. 

Roger Putnam recommended counting the AADU’s into the % of affordable housing.

Mick Lynch moved to adjourn at 8:15 pm; seconded by Manny Heyliger; passed 7-0.

Respectfully submitted,

Christine A. Bates, Committee Secretary

 

 

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