Print
Share page with AddThis

Approved ZBA mtg mins

Meeting date: 
Thursday, September 21, 2017

 

Approved

Zoning Board of Appeals

Meeting Minutes

September 21, 2017   7:00 pm

Wellfleet Senior Center

Attendees:  Roger Putnam, Bruce Drucker, Reatha Ciotti, Don Palladino, Mick Lynch, Trevor Pontbriand, and Building Inspector, Justin Post and Committee Secretary, Christine Bates

Regrets:  Sharon Inger, Manny Heyliger and Sibel Asantugrul

7:00 pm

17-32  Brian Kelley, 145 School Street, Map 15, Parcel 19:  Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) Building permit denied due to topographical depression on land which may or may not be actual natural grade or mechanical removal of soil (Cont’d).  The Board consisted of Roger Putnam, Trevor Pontbriand, Reatha Ciotti,

Mick Lynch and Don Palladino.  At the request of the applicant, Mick Lynch moved to continue to October 19, 2017, seconded by Don Palladino; passed 5-0.

7:05 pm

17-24  Community Housing Resource, Inc., 120 Paine Hollow Rd., Map 29, Parcel 300, Application for a Comprehensive Permit pursuant to M.G.L. Chapter 40B, Sections 20 – 23 to construct two structures each containing four units for a total of eight affordable rental units on the subject property containing approximately 4.96 acre (Cont’d).  The Board consisted of Roger Putnam, Trevor Pontbriand, Mick Lynch, Manny Heyliger, and Don Pontbriand.  At the request of the applicant, Mick Lynch moved to continue to October 19, 2017; seconded by Don Palladino,. Passed 5-0 

7:10 pm

17-35  Debra Dickinson, (address of concern) 110 Western Ave, Map 36, Parcel 130:  Appeal from Person Aggrieved, WZB 8.4.1 and MGL.c.40A, s 15:  Petitioner(s) seek to overturn said decision by Building Commissioner declining the petitioner(s)s enforcement request.  The Board consisted of Roger Putnam, Don Palladino, Trevor Pontbriand, Bruce Drucker and Reatha Ciotti.  Attorney David Reid represented Debra Dickinson.   He stated the Building Inspector did not enforce the removal of the cooler on the property and the cooler does not conform to the home occupation bylaw. Atty. Reed explained that the home occupation bylaw is an exception to the residential use in the residential district and must be strictly adhered to by the Board. He stated Ms. Dickinson is not asking the Bruinooge’s to stop their shell fishing business but only the cooler in a residential neighborhood is the issue.  He reviewed the issues as more fully stated in his 7/3/17 letter to the Building Inspector. The Board stated they had made a site visit.  Attorney Reid stated the building permit was never reissued because the Building

Inspector determined this is a commercial use in the residential district covered by the home occupation by law.  Attorney Reid again reiterated this is a structure and the bylaw does not allow a free standing building for home occupation and it is not concealed from view.  He stated the compressor is not currently running but did run for 4 days during the summer and, according to Ms. Dickinson, was very loud.  He recommended the cooler be placed in the garage or basement. 

Bruce Drucker stated this is for storage of oysters, not processing.  At the current time, the cooler is not in use.  Attorney Nick George, spoke on behalf of Ms. Bruinooge, and gave the history of the cooler’s original location and relocation due to setbacks.  He also provided the family’s shell fishing history.  The Building Inspector considers this a piece of equipment and an ordinary home air conditioning unit generates  noise similar to the cooler.  The idea that the cooler should be moved to commercial property is not possible due to the expense.  Ms. Bruinooge stated a gate will be placed on the open side of the cooler.

Three e-mails were read into the record, Susan Reverbee objected to the cooler’s location; and letters of support for the Bruinooge’s from Donna McCarthy and Clair Watts. 

Chair Roger Putnam opened the hearing to the public for comments:

Debra Dickinson stated she and the neighbors are not anti-shell fishing, but the Bruinooge property should not be a commercial business in the residential district.  The new shell fishing regulations are creating challenges for the neighborhood, the cooler is visible from every window in her home, it will be a minimum of ten years for the trees to grow in order to provide a shield, the unit is very loud, and she hears all the conversations taking place on the Bruinooge property.  Conversation between her and the Bruinooge’s has stopped and this has changed the quality of her life and her enjoyment of her property.

Berta Bruinooge stated the electricity was hooked up in June and was turned on for 6 hours to make sure the unit was working and there were no oysters or product in it.  Ms.   Dickinson’s house is placed closely on the property line and only the back of her house is affected by views and any noise.  There are several coolers in other locations in town and the Building Inspector stated the cooler didn’t require a permit.  The cooler is for storage only, nothing commercial.  Underground storage for the oysters is not as good based on the winters being warmer.  There is a certain temperature that has to be maintained for the oysters. 

Nancy Civetta, Shellfish Constable, stated her department hopes oysters will be removed from the waters during the winter in order to keep the harbor safe and clean.  If not removed, shell fisherman area required to sign paperwork with the town and not impact the harbor.  She stated the shellfish department is in favor of the coolers.  Michael Divesko, stated once the oysters are dormant, the temperatures should not reach 45 degrees.  Storage should be between 30 and 40 degrees.  Oysters will perish over 45 degrees.  He lost over 50% of his oysters last year due to the warm winter.  The cooler creates a thermal mass that keeps the temperature at 40 degrees. 

Becky Cotton stated she lives in the neighborhood but is not an abutter.  She sees sheds and equipment in the neighborhood and many that are associated with jobs.  She stated she is an architect and has never been asked to design a cooler.  The State did not award grants for buildings, but for equipment.  There are a dozen coolers in Wellfleet which supports the industry. 

Don Romeo stated there are 12 cooler units in town already, and stated there are people who do not like the looks of the cooler.  There is a new fence around the cooler, another neighbor had chickens and a coop, and people work for a living in this neighborhood.  If everything that is visually objectionable to people were banned, it would be bad for the town.  He stated sound issues don’t last forever and you get used to it.

Bob Wallace stated the home occupancy bylaw was passed regarding marine aquaculture.  He stated he lost 40% of the oysters last year in a pit.  Other people using the coolers did not have any loss. 

Michael Divesko stated he feels Ms. Bruinooge has gone above and beyond and compromised with moving the cooler and putting fencing around it.  People should get along.

Attorney Reid reiterated the ZBA’s responsibility to interpret the bylaws and to conform with accommodating the neighborhoods who have homeowner occupations.

Debra Dickinson again stressed how the cooler has impacted her life, how she has invested in screening on her property, and the noise from the cooler does not sound like an air conditioner. 

Chair Roger Putnam closed the public comment and asked for Board for their comments:

The Board asked if the bylaws accommodate visual impact and noise impact for home occupancy; statement that the grant money for the coolers were specifically mentioned for the shellfish industry; and there is no place on the property to house the cooler other than the current location.  Bruce Drucker stated the storage of shellfish on a shell fishermen’s property has not been looked at in Wellfleet as a commercial activity in violation of the zoning bylaw. Mr. Drucker stated that there are at least six or seven provisions in the Wellfleet zoning bylaw that arguably relate to home occupations and the use of a walk-in cooler to store shellfish. He stated that, in his opinion, some of the zoning bylaw provisions relating to home occupations are ambiguous and some seem to contradict one another. He recommended that the shell fishing community get together, retain an attorney, and draft a petitioned article for presentation at Town Meeting to clearly state what shell fishermen and women can or cannot do on their property with respect to the storage of shellfish and the use of a walk in cooler or other apparatus to store shellfish.

 Shellfish have been stored in Wellfleet for years (cellars, pits) on property and he doesn’t feel it is prohibited by the bylaw.  He feels the cooler requires adequate screening so it is not exposed.  This is a traditional activity in Wellfleet, that is, the storage of shellfish on property.

Don Palladino moved for Findings of Fact; seconded by Trevor Pontbriand; passed 5-0.

  1. Petitioners seek to overturn the Building Inspector’s July 13, 2017 letter declining the July 3, 2017 request by Petitioner’s attorney to enforce the prior Building Inspector’s January 12, 2017 order requiring that a walk-in cooler used to store shellfish located at 110 Western Ave. in Wellfleet be removed from the premises.
  2. The ZBA has made a site inspection of the cooler located at 110 Western Ave. and has reviewed all documents filed in connection with this application.
  3. Background:
    1. Berta Bruinooge is the owner of the lot located at 110 Western Ave.
    2. The lot is in the residential zoning district.
    3. Mrs. Bruinooge is a shellfish grant holder as is Jason Weiseman who originally purchased the cooler.
    4. The cooler is intended to be used by Mrs. Bruinooge, Mr. Weiseman, and Mrs. Bruinooge’s son, Evan Bruinooge, to temporarily store shellfish from Mrs. Bruinooge’s grant and Mr. Weiseman’s grant.
    5. On December 12, 2016 the then Building Inspector issued a building permit to Mrs. Bruinooge for an 8 x 20-foot walk-in cooler.
    6. In January, 2017 the cooler was placed on the premises at 110 Western Ave.
    7. Pursuant to letter dated January 12, 2017 the Building Inspector revoked the building permit and ordered the cooler removed from 110 Western Ave.
    8. On March 8, 2017 Mrs. Bruinooge appealed to the ZBA from the Building Inspector’s January 12, 2017 revocation letter.
    9. Pursuant to a decision filed with the Town Clerk on April 20, 2017 the ZBA unanimously voted to direct the Building Inspector to reissue the building permit.
    10. The petitioners appealed to the Land Court which vacated the ZBA’s April 20, 2017 decision because the appeal of Mrs. Bruinooge to the ZBA was untimely.
    11. On July 3, 2017 the attorney for the Petitioners wrote to the current Building Inspector stating, among other things, that because the prior Building Inspector’s letter of January 12, 2017 ordering that the cooler be removed had not been lawfully appealed that it remains in effect and must be enforced.
    12. On July 13, 2017 the Building Inspector sent a letter to the Petitioner’s attorney declining the enforcement request contained in the attorney’s July 3, 2017letter.
  4. The harvesting and temporary storage of oysters in Wellfleet is a long time traditional activity of residents and others and is a significant source of income to many of Wellfleet’s year-round residents.
  5. Shellfish removed from grants or from the wild have been historically stored on properties in all of Wellfleet’s zoning districts; this storage has taken place in pits excavated on properties and in cellars. The storage or holding of shellfish on properties has not traditionally or historically been regarded in Wellfleet as a commercial activity and isn’t prohibited by the WZBL in the residential district.
  6. The storage or holding of harvested shellfish on properties in the residential and other zoning districts is a customary home occupation traditional to Wellfleet as provided for in WZBL 2.1 under the definition of “Accessory Use.”
  7. The storage of shellfish on property in the residential district is not a prohibited “Home Occupation” use pursuant to WZBL 2.1 under the last sentence of the definition of “Home Occupation.”
  8. Pursuant to WZBL 6.22.2 two non-family members may be employed in a Home Occupation.
  9. The cooler is equipment as provided for in WZBL 6.22.2 (5) & (6). Pursuant to WZBL 6.22.2 (5) the cooler must be concealed from the view of abutters and the street by, among other things, a fence.
  10. Shellfish cultivation, harvesting, and storage are a centuries old major part of the traditional fabric of Wellfleet which predates the birth of everyone who participated in or attended the hearing which is the subject of these findings.
  11. Petitioners have failed to demonstrate that the Building Inspector erred in his July 13, 2017 letter declining the enforcement request contained in the July 3, 2017 letter of Petitioners’ attorney.

Trevor Pontbriand moved the Findings of Fact; seconded by Reatha Ciotti; passed 5-0.

Bruce Drucker moved based upon the Findings the Petitioners’ application to overturn the Building Inspector’s July 13, 2017 letter declining the July 3, 2017 request by Petitioners’ attorney to enforce the prior Building Inspector’s January 12, 2017 letter ordering the removal of the cooler from the lot at 110 Western Ave. is denied, on the condition that by October 31, 2017 fencing satisfactory to the Building Inspector is installed on all four sides of the cooler concealing the cooler from the view of abutters and the street; seconded by Trevor Pontbriand, passed 5-0.

 Meeting minutes to be address at next meeting.

No Business

Bruce Drucker moved to adjourn at 8:45; seconded by Mick Lynch; passed 7-0

Respectfully submitted,

Christine A. Bates, Committee Secretary

 

 

.