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ZBA 11/05/15 Mtg Mins

Meeting date: 
Thursday, November 5, 2015

Approved

Zoning Board of Appeals

Meeting Minutes

November 5, 2015 7:00 pm

Wellfleet Senior Center

Attendees: Chair Roger Putnam, Bruce Drucker, Mick Lynch, Sharon Inger, and Manny Heyliger, Vern Jacob, and Don Palladino

7:00 pm

15-32  Barry & Barry, LLP, 3199 Rte 6, Map 8, Parcel 259:  Application for Exemption, Flood Hazard District Regulations under WZB 6.14.3 and WZB 8.4.2:  New foundation under existing cottage.  The Board consisted of Roger Putnam, Manny Heyliger.  Bruce Drucker, Sharon Inger and Mick Lynch.  Ezra Ambrose represented the applicant and gave an overview of the FEMA requirements.  There will be a small landing and stairs for access in and out of the dwelling within the setbacks at 18’ + / -.  Mick Lynch moved for Findings of Fact; seconded by Manny Heyliger; passed 5-0.

  1. This is an application for a floodplain exemption under WZB 6.14.3 and WZB 8.4.2  from the floodplain bylaw, WZBL 6.13, ,
  2. The Zoning Board of Appeals has received and reviewed the plans and drawings pertaining to the project all of which are in the file.
  3. The Zoning Board of Appeals has made a site inspection of the subject lot.
  4. The lot is located in the Floodplain District.
  5. There is a three-bedroom dwelling on the lot and a two bedroom cottage.
  6. The applicant seeks the floodplain exemption to install a new FEMA compliant foundation under the existing cottage.
  7. There are no objections from abutters.
  8. The applicant has obtained approval of the Wellfleet Conservation Commission in accordance with MGL Chapter 131, S. 40, the Wetlands Protection Act, and with the Town of Wellfleet's Environmental Protection Bylaw
  9. After considering the District Objectives for the zoning district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2, the Board finds that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity
  10. The Board finds that the granting of the exemption will not result in increased flood heights, decreased flood storage capacity, additional threats to public safety, extraordinary public expense, cause fraud on or victimization of the public, or conflict with existing local laws.
  11. The Zoning Board of Appeals approves the stairs and narrow decking shown on the approved drawing.

Mick Lynch moved to approve the Findings of Fact; seconded by Manny Heyliger, passed 5-0.  Bruce Drucker moved to grant the Special Permit for a floodplain exemption subject to the following conditions:

  1. The applicant will comply in all respects with the State Building Code, Section 744.0.
  1. Further, the applicant is advised pursuant to WZBL 6.14.4 that the issuance of the exemption may result in increased premium rates for flood insurance.seconded by Manny Heyliger; passed 5-0.

7:10 pm

15-31  Mia Saunders, 265 Main St., Map 15, Parcel 56:  Application for a Special Permit under WZB 6.1.5 and 8.4.2 and M.G.L.c 40A,s 6 to alter a pre-existing, non-conforming structure / use by removing the kitchen from the existing apartment residential dwelling and renovating the existing barn to create a habitable dwelling.

The Board consisted of Roger Putnam, Sharon Inger, Don Palladino, Trevor Pontbriand, and Vern Jacob.  Attorney Ben Zehnder represented the applicant and stated the revised narrative to change the wording from barn to accessory building was performed and an affidavit was provided by the former owners of the property.  Richard Stevens provided a statement to Attorney Zehnder that he considers this a pre-existing non-conforming use (as an apartment within the house).  The Board discussed multi-family dwellings and the right of the Board to authorize two dwellings on one lot (not affordable accessory dwelling units).  Attorney Zehnder stated MA 40A, Section 6 states a special permit could be granted since it is pre-existing non-conforming.  Concerns about the continuous use of the apartment, abandonment and allowing the use of an accessory building to become a dwelling were expressed.  Ms. Saunders stated the apartment was occupied and rented when they purchased the house in 1990.  In approximately 2003 a special permit was granted for gallery use, up until 2014.  Attorney Zehnder stated he feels the applicant carried the burden of proof by using 40A, Section 6, the apartment could be used based on the pre-existing.  Bruce Drucker stated this would create a new use by using the new building as a dwelling.  Attorney Zehnder stated the code does not differentiate between two buildings or one regarding the term for dwelling.  Trevor Pontbriand moved for Findings of Fact; seconded by Vern Jacob; passed 5-0.

  1. This is an application for a Special Permit under WZB 6.1.5 and 8.4.2 and M.G.L.c 40A,s 6 to alter a pre-existing, non-conforming structure / use by removing the kitchen from the apartment in the existing dwelling and renovating the existing accessory building to create a habitable dwelling.
  2. The Zoning Board of Appeals has received and reviewed the plans and drawings pertaining to the project all of which are in the file.
  3. The Zoning Board of Appeals has made a site inspection of the subject lot.
  4. The lot is located in the Central District.
  5. There were no comments from abutters.
  6. The lot is 16,982 ft.² on which is located a 1641 ft.² dwelling constructed in approximately 1800 per the assessor’s office and a detached 600 ft.² structure constructed in 1992.
  7. The dwelling is a lawfully pre-existing nonconforming structure. The nonconformities include intrusion onto the front and side yard setbacks.
  8. The lot is nonconforming in that it is undersized and there is inadequate frontage.
  9. The application states that the dwelling consists of a main residence and an apartment. The apartment appears to be a kitchen, bedroom and bathroom within the dwelling. Since the dwelling contains two dwelling units it is a multiple family dwelling per the definitions of Wellfleet Zoning Bylaw 2.1
  10. Pursuant to Wellfleet Zoning Bylaw 5.3.1 multiple family dwellings are a prohibited use in all of Wellfleet’s zoning districts, including the central district where the subject lot is located.
  11. The application seeks a Special Permit for two dwellings on the lot, namely, the existing dwelling and a dwelling in the detached 600 ft.² accessory structure.
  12. Two dwellings on a single lot are prohibited by Wellfleet Zoning Bylaw 4.1(5) which states in pertinent part; “Not more than one dwelling may be erected on a lot.”
  13. The applicant contends that the Board can issue a Special Permit under WZBL 6.1.5 and 8.4.2 and M.G.L.c 40A,s 6 allowing the removal of the kitchen in the dwelling’s apartment and the renovation of the accessory structure as a habitable dwelling because the existing dwelling is a lawfully pre-existing multiple family dwelling.
  14. The applicant has submitted a November 3, 2015 email from the Wellfleet Building Commissioner and an unsworn October 22, 2015 statement apparently signed by Mrs. Judith Howland. Both documents are in the file.
  15. The Building Commissioner’s November 3, 2015 email is not based on his personal knowledge. Rather it’s based “on the verbal history and the affidavits supplied by Judith Howland.” The Board assumes the Building Commissioner’s reference to an affidavit is Mrs. Howland’s unsworn October 22, 2015 statement. The Board is not required to give weight to an unsworn statement, but will assume that it is truthful. According to the statement Mrs. Howland’s husband told her that the apartment existed as of 1953 when it was rented to an individual. Mrs. Howland is aware that since 1963 there was an apartment in the dwelling through 1990 when the property was sold to the applicant. However, the unsworn statement is silent as to whether the dwelling was continuously used as a multiple family dwelling since 1953. According to the applicant after acquisition of the property the apartment was rented, but since approximately 2003 it was not rented as an apartment dwelling since the front part of the building was used as a retail establishment. Currently, there is no tenant in the apartment. Based on the foregoing the Board finds that the applicant has failed to establish that the dwelling has been continuously used as a multiple family dwelling since 1953 and has failed to establish that the dwelling is a lawfully pre-existing multiple family dwelling. In addition, the Board finds the use of the dwelling as a multiple family dwelling has been discontinued for a period of two or more years and the applicant has not filed an application for a Special Permit to reestablish the nonconforming use.
  16. Even if the Board were to find that the dwelling is a lawfully pre-existing multiple family dwelling it cannot issue a Special Permit to allow the conversion of the accessory structure to a second dwelling on the subject lot. The application is made pursuant to Wellfleet Zoning Bylaw 6.1.5 and 8.4.2 and M.G.L.c 40A,s 6 for a second dwelling on the subject lot. Wellfleet Zoning Bylaw 6.1.5 refers to a Special Permit to alter a nonconforming single or two family residential structure and does not authorize altering the accessory structure to convert it to a second dwelling on the subject lot. Likewise, M.G.L.c 40A,s 6 does not authorize a Special Permit to extend the use of a multiple family dwelling to two separate dwellings on the same lot especially in the face of Wellfleet Zoning Bylaw 4.1(5) prohibiting more than one dwelling on a lot
  17. Even if the ZBA were authorized to exercise its discretion to issue a Special Permit to allow a second dwelling on the subject lot the Board finds that the applicant has failed to demonstrate that a second dwelling will not be more substantially detrimental to the neighborhood than the existing use of the accessory structure for storage. The subject lot is undersized, lacks the required frontage and the existing dwelling substantially intrudes on the front and side setback. The lot is located on Main Street in the central district which is overbuilt and congested. The addition of a second dwelling on the lot would increase the use of the lot and congestion in the neighborhood.. The Board also finds that the applicant has failed to demonstrate that the benefits of the proposal will outweigh any adverse effects on the Town and the vicinity after considering the District Objectives for the central district as provided for in WZBL 3.2 and the relevant criteria set forth in WZBL 8.4.2.

 

No vote was taken on the Findings of Fact.  Attorney Zehnder requested a continuation to November 19, 2015. Sharon Inger moved to continue the hearing to November 19, 2015; seconded by Don Palladino; passed 5-0.              

 Business

              Land Court’s Cumberland Farms Decision

Chair Putnam stated he would like to continue the discussion regarding the Decision and the Town Administrator asked the Board for a statement regarding a potential appeal.  The decision that the judge provided appears to be based on the formula business.  Discussion for reasons for an appeal included the parking spots, parking in front of the gasoline pumps, (the judge’s statement there is only 1 gas station in Wellfleet was incorrect), the traffic study provided by Cumberland Farms was done in the off season, (heavy traffic for 10 weeks), the judge threw out the formula business bylaw, and the judge stated the expansion of liquor, convenience store plus gas station would not increase the use.   There was no evidence that abutters’ value of property and quality of life would be changed with the larger stores and gas service.  Bruce Drucker stated he would advise there be an appeal based on the judge’s findings.  Roger Putnam stated there is a new DOT study on Route 6 and in the vicinity of Cumberland Farms since the original hearing.

Ben Zehnder stated based on the formula business bylaw, the town may have lost this case.  He feels this is a Planning Board issue based on the bylaws.

The ZBA voted unanimously at its November 5 meeting to recommend that Wellfleet prosecute an appeal from that part of the Land Court’s decision ordering the issuance of special permits to Cumberland Farms. The ZBA does not take any position as to whether the Town should prosecute an appeal from the Land Court’s decision invalidating the Formula Business Bylaw.

Meeting Minutes 

Sharon Inger moved to approve the amended 09/17/15 and 10/15/15 meeting minutes; seconded by Mick Lynch; passed 7-0.  Sharon Inger moved to approve the 10/15/15 Executive Meeting Minutes;  seconded by Mick; passed 7-0

Trevor Pontbriand moved to adjourn at 8:30; seconded by Manny Heyliger; passed 8-0.

Respectfully submitted,

Christine A. Bates

Committee Secretary