Approved ZBA mtg mins

Approved

Wellfleet Zoning Board of Appeals

August 12, 2021  7:00 pm

Remote Meeting

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

Regrets:  Manny Heyliger

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

7:00 pm

21-20  Gannon, 206 Holbrook Ave., Map 14, Parcel 161:  Application for a Special Permit under WZB 6.1.5.1 (b) to construct a 48” wide pathway, replacing the existing one, for safety and proper access to the rear of the property, which is in relation to a proposed deck which is within the side setback.  The Board consisted of Mick Lynch, Sharon Inger, Jan Morrissey, Trevor Pontbriand, and Wil Sullivan.  Mick Lynch moved to continue the hearing to September 9, 2021; seconded by Jan Morrissey. VOTE:  Mick Lynch aye; Jan Morrissey aye; Trevor Pontbriand aye; Wil Sullivan aye and Sharon Inger aye. 5-0. 

7:10 pm

21-21  Sexton, Lecount Hollow Road, Map 30, Parcel 600:  Appeal from Person Aggrieved (MGL Ch. 40-A, S.8) Building Commissioner erred in interpreting Section 6.9 of the WZB to prohibit the cutting of trees and brush on the applicant’s land.  The Board consisted of Mick Lynch, Sharon Inger, Wil Sullivan, Trevor Pontbriand and Jan Morrissey.  Albert Schulz, Attorney for the Sexton’s, stated the applicant cut down pitch / scrub pine which was left on the property.  He stated the bylaw does not determine the size of the trees.  It was not clear cut, not being used for logging, and the wood is useless.  He recited MA laws (Title 36 and Title 43) regarding the definitions of timber and trees and stated there is no clear or specific definition.   Title 43 defines lumber as standing trees, downed trees or logs which are capable of being measured which would have some value.  He stated he has reviewed state and federal case laws and defines timber as standing trees which are suitable in the construction of buildings or manufacturing.  MA General Law distinguishes trees from lumber.  Chapter 266, Section 5 states timber is different than lumber.  Chapter 242 Section 4 prohibits from cutting down or carrying away timber, trees or underwood.  He stated all trees are not timber.  Our bylaw 6.9 specifically uses the word trees so trees and lumber are different.  He suggests thousands and thousands have been cut in the past within that district.  Every permit for a house would require a permit in that district and homes could not be built for setbacks[, etc.  The Sexton’s  are asking the Board to determine that the Building Inspector erred.

Paul Fowler, former Building Inspector, stated he disagrees with the applicant’s definition of timber.  Many of the pitch pine trees were 30’ to 40’ tall.  This bylaw has been on the books since 1963 when the National Seashore Park District was formed, and he feels the Sexton [SI6] knew it was prohibited.  The applicant stated something different than what the appeal states.  The statement from the applicant was read into the record regarding the “right” to cut.  References were made regarding the Building Inspector discussing the cutting with him, and the cease and desist notification.  Paul Fowler stated he looked up the definition of “timber” and he had a discussion with Mr. Sexton.  He stated there is a difference when new construction takes place.  It is prohibited anywhere within the district without a permit.  Mr. Sexton advised Mr. Fowler he was cutting the trees to create a driveway and parking lot.  Attorney Schultz stated Mr. Sexton continued cutting for one full day because Mr. Fowler advised him it was ok.  He was told on the second day to stop.  Paul Fowler stated he told Mr. Sexton he wanted to review definitions further.  Mr. Fowler recalled a conversation one month earlier and Mr. Sexton stated cutting would take place for a single-family home and not within the Seashore.

Richard Robicheau stated in the 1990’s there was sawmill within the Seashore and the lumber was from pitch pine and used to build a home.  Julie Rothman drives by this site several times a day and was appalled with what was going on and was told to mind her own business when she approached the workers.  She called the National Seashore.  She believes The Sexton’s want to profit from this clearing of trees and last year they were waving cars onto their property and charging a fee since the Lecount parking lot was closed to the public.         

A letter from the National Seashore dated August 9, 2021 was read into the record which stated commercial parking was stopped last year.  The intent of the bylaw regarding timber state prohibiting industrial or commercial use within the National Seashore.  Preserve the seashore (take from letter).  

Letter from Town Administrator of last year which was directed to Sexton (9/8/2020) stated fees were taken for parking.  The property is within National Seashore and conflicts with the National Seashore Zoning standards Code of Federal Regulations, CFR Title 36, Part 27 27.1 and 27.3. [ 

A letter dated September 8, 2020 from Town Administrator Maria Broadbent was read into the record regarding public parking for a fee at the 420 Lecount Hollow Road property, which included the bylaws and restrictions regarding commercial uses, along with potential fines.        

Board comments:  Wil Sullivan stated the terminology is ambiguous and Attorney Schulz stated he doesn’t agree.  Mr. Sullivan feels the definition of timber is much broader.  Cutting timber doesn’t control brush and trees and opens up a canopy.  Attorney Schultz responded he is aware of New Hampshire cases as well as Federal cases which go back to 1903 regarding definitions of timber.  Mick Lynch stated the Park was created in 1961 for the public.  It took 50 years for the trees which were cut to grow and it will take another 50 years to replenish them.  In 6.9 there is no clear cutting of trees and the National Seashore bylaws do not apply to the rest of the town.  Mr. Schultz does not know how many trees were cut down and removed.  Attorney Schultz stated we are dealing with the definition of timber and not trees .  Reatha Ciotti stated there were large piles of trees and they are unsightly and this activity does not carry out the theme of the Park.  Al Mueller stated the Cape has experienced trees being removed for centuries and money has been made from the use of those same trees.  Andy Freeman in reviewing definitions of “timber” there are several different uses.  The Seashore has their own bylaws.  Jan Morrissey stated the term “timber” in bylaw 6.9 was used as an umbrella term.  Lecount Hollow Road is a scenic road and if any cutting was done along the road, the Sexton’s would have had to go to the Planning Board for their recommendation.  Sharon Inger wanted to know if trees were cut on the perimeter of Lecount Hollow Road and it appears trees were cut further down the road from the cottage colony.   She pointed out there are 17 structures on the property and each cottage has room to park 4 cars and wanted to know what the purpose of the clearing is.  What is the parking going to be used for.  The attorney refused to answer the question.  Paul Fowler stated the cease and desist was for violations of the bylaw and they would not stop the work until ordered.  He issued the second cease and desist after he realized the intent of what they were doing as they already had ample parking for the cottages.  Attorney Schultz stated he is not aware if they applied for a permit for the additional parking.  Attorney Schultz stated they have the right to park on their personal property.  Further discussion took place regarding the reason(s) for the additional parking.  The National Seashore used language that was old fashion and in 1963, there was no timber within the seashore.  The trees have grown up and the intent was to have a forested park, in keeping with the preservation of natural and scenic areas for users of the park.  Mick Lynch stated he is troubled that when the Building Inspector told them to cease and desist, he was told they would continue until something was in writing.  The intent of the bylaw is important to preserve what we have in the Park and it was clear cutting and not allowed.  Reatha Ciotti stated it appeared there is room for 50 to 60 cars in the area of the cutting.

It was recommended Findings of Fact be written and have the Board review at the next meeting.

Mick Lynch moved to close the public hearing; seconded by Wil Sullivan.  Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan aye; Jan Morrissey aye and Sharon Inger aye.  5-0.  Jan Morrissey moved to continue to 8/26; seconded by Mick Lynch.  Mick Lynch aye; Trevor Pontbriand aye; Wil Sullivan aye; Jan Morrissey aye and Sharon Inger aye.  5-0 

7:50 pm

19-13  Taylor, 105 Kerouach Road, Map 8, Parcel 30, Request for 2-year extension to construct an affordable accessory dwelling unit (originally approved on June 27, 2019)  The Board consisted of Wil Sullivan, Mick Lynch, Andy Freeman, Reatha Ciotti and Al Mueller.  Chair Sharon Inger stated she has correspondence from the applicant.  Nate Taylor stated he wished to withdraw without prejudice and thanked the Board.  He will pursue an ADU under the new bylaw.  Wil Sullivan moved to allow the applicant withdraw without prejudice; seconded by Mick Lynch.  Mick Lynch aye; Trevor Pontbriand aye; Andy Freeman aye; Reatha Ciotti aye; and Al Mueller aye.  5-0.

BUSINESS:

Reorganizing the Board

Current:  Sharon Inger is the Chair, Mick Lynch is Co-Chair and Manny Heyliger is the Clerk and Jan Morrissey represents the Board at the Local Housing Partnership.

Wil Sullivan moved to maintain the same officers and positions; seconded by Andy Freeman.    Sharon Inger aye, Mick Lynch aye, Reatha Ciotti aye, Trevor Pontbriand aye, Wil Sullivan aye, Andrew Freeman aye, Al Mueller aye and Jan Morrissey  aye 8-0.

Wil Sullivan moved to approve the amended July 8, 2021 meeting minutes; seconded by Mick Lynch.  Sharon Inger aye, Mick Lynch aye, Reatha Ciotti aye, Trevor Pontbriand aye, Wil Sullivan aye, Andrew Freeman aye, Al Mueller aye and Jan Morrissey  aye 8-0.

Mick Lynch moved to adjourn at 8:15 pm; seconded by Andy Freeman.  Sharon Inger aye, Mick Lynch aye, Reatha Ciotti aye, Trevor Pontbriand aye, Wil Sullivan aye, Andrew Freeman aye, Al Mueller aye and Jan Morrissey  aye 8-0.

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:

Gannon:  e-mail request for continuation

Sexton:  Appeal application, letter from Nat’l Seashore, letter from Town Administrator

Taylor:  e-mail request for withdrawal without prejudice.