ZBA-Minutes

Approved

Wellfleet Zoning Board of Appeals

COA, 7:00 pm

Meeting Minutes of August 8, 2019

Attendees:  Sharon Inger, Bruce Drucker, Manny Heyliger, Trevor Pontbriand, Wil Sullivan, and Janet Morrissey

Regrets:  Mick Lynch and Reatha Ciotti

7:00pm

19-20  Barry Smith, 180 Kendrick Ave., Map 20, Parcel 21:  Application for a Special Permit under WZB 6.1.5.1.b for a dormer addition of 375 cu. ft and a 4’ x 9’4” upper level deck.  The Board consisted of Sharon Inger, Bruce Drucker, Manny Heyliger, Jan Morrissey, and Wil Sullivan.  Jay Horowitz represented Mr. Smith and provided the current conditions of the dwelling regarding the setbacks and stated the volumetric expansion will be minimal.  [SI1] The bedroom on the first floor will be 65 sq. ft and the main bedroom will be on the 2nd floor.  Letters of opposition were read from William Gentile and Carly Bertran.  One letter supporting the project was from Mr. and Mrs. Riley.  Jan Morrissey questioned why a filing was not made for the Flood Plain Exemption, and Mr. Horowitz stated there will be no work done on the ground.  Manny Heyliger questioned if the current foundation will be stable enough for the addition and Mr. Horowitz stated there is a good concrete base, and he feels it will be adequate. Mr. Horowitz stated it would be a minimal volumetric increase.   Bruce Drucker moved for Findings of Fact; seconded by Manny Heyliger; passed 5-0.

The application is for a Special Permit to allow for an addition to the applicant’s property     of a 2 dormer addition of 375 cubic feet and for the construction of an upper-level deck (4'x 9'4"), both of which are hereinafter referred to as “the additions”. Without a special permit the additions would not be allowed due to the fact that they would result in a minimal volumetric increase within the setbacks. The additions would not physically encroach further into the setbacks than currently exists.

The lot is in theR30 District.

The dwelling is a lawfully pre-existing, nonconforming structure having been built in 1953 according to the Assessor’s Office.

 The applicable provisions for this application under the town of Wellfleet zoning bylaws are Section 6.1.5.1 b and Section 8.4.2.

The additions will be constructed entirely on the existing footprint.

There was one letter in support of the application.

There were two letters in opposition to the application.

Pursuant to Section 8.4.2.1:

A. The Board finds that the additions are suitable in that they are compatible with nearby land uses which would not be damaged by the additions.

B. The Board finds that the roads, drainage and other public utilities would not be affected by the additions.

     C. The Board finds that the additions will not contribute to environmental damage.

     4. Pursuant to Section 8.4.2.2:

         Not applicable

     5. Pursuant to Section 8.4.2.3:  

     The Board finds that the building and site design will not adversely affect scenic views from public ways or neighboring properties.

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

7:40 pm

19-21  Gail Sullivan and Constance Breece, 16 Baker Rd, Map 29, Parcel 316; Application for Variance under WZB 4(5) (not more than one dwelling may be erected on a lot) to continue using a second dwelling structure on their lot, and request a determination that their cottage structure is lawfully pre-existing, for zoning purposes to M.G.L., c. 40A, s.7.  The Board consisted of Sharon Inger, Bruce Drucker, Manny Heyliger, Wil Sullivan, and Trevor Pontbriand.  Attorney Ben Zehnder represented the applicants and gave the history of the property.  A variance was granted in the past, but the conditions to reduce the size of the cottage were never implemented by the previous owners.  The new owners did due diligence in putting the history together and contacting the Town regarding the size  and  use of the cottage.  .  Toni Gisone, an abutter, stated the cottage has always been rented.  Amanda Robinson, real estate agent, stated they were sure at the time of purchase by the applicants there were no restrictions on the property since records were vague.  Letters of support were made part of the record from Phyllis Ewen and Jim Campen, David Holmstrom and Bonnie Shepard, Carl Sussman and Laura Lubetsky, Laura Mamo and Helen Fitsimmons, Terry Galvin, Karen Van Winkle and Richard Games, Julie Silberman and Dianne Perlmutter, Ellen Israel, and Ricki and Steve Lacy. 

Manny Heliger questioned the bedroom count and septic capabilities, and there is one bedroom in the cottage and 3 bedrooms in the main hou;[SI2]  the title inspection is for 4 bedrooms. 

Attorney Zehnder stated the owners in 1987 did not file the paperwork with Barnstable County. 

Bruce Drucker suggested the Board eliminate the conditions to the prior order, based on the town’s error by not checking if the cottage was reduced to 250 sq. ft.  Attorney Zehnder stated he feels a variance request is needed to allow the two dwellings to remain as is and that a variance is appropriate due to the financial hardship of having the use disqualified.   There is a potential buyer.  Wil Sullivan stated the shape of the property is unique, and the usage has been going on over 30 years.  Trevor Pontbriand stated the second building was constructed after zoning which makes it non-compliant.  After the 10 years, legally its removal cannot  be compelled, but that does not cover the usage according to MA 40A, s7.   . 

Bruce Drucker moved for Findings of Fact; seconded by Wil Sullivan; passed 5-0.

This is an application for a variance from Wellfleet bylaws 4(5) to continue using a second dwelling structure on a single lot. The petitioners are requesting a determination that their cottage structure is lawfully pre-existing, for zoning purposes, pursuant to M.G.L. c 40A s 7.

The lot is in the R30 District.

There are two dwelling units on the property, a 610 square foot cottage built in the 1930s and a 2,172 square foot house built in 1987 after the previous owner was granted a variance in 1986 from the minimum yard and sideline setback requirements by the Board of Appeals in Case No. 86-21.

Conditions on the granting of the variance included that the cottage be reduced to 250 square upon completion of the new dwelling, that cooking facilities be removed from the cottage, and that any use of the cottage be for family or friends with no fee charge, to meet the criteria for private guesthouse.

These conditions were not complied with by the then owner. The Town of Wellfleet did not enforce the conditions outlined in paragraph three above.

Prior to purchasing the property in 2016, the present applicants contacted the then Wellfleet Building Inspector and the then Assistant Town Manager/Town Planner regarding the cottage. The present applicants received confirmation that the cottage as well as the 1987 dwelling were lawfully pre-existing structures.

Following the purchase of the property the applicants obtained a building permit and renovated the cottage’s kitchen, and since the time the applicants purchased the property, they have paid property taxes on the parcel valued as a multiple dwelling property.

The applicants purchased the property in 2016 with the understanding that the two dwelling units on the property were lawfully pre-existing dwellings. They have provided evidence in the form of letters in the Town files to the Building Department and the Assistant Town Administrator/Town Planner showing that they attempted to resolve the question before their purchase.

The assessor’s records show that the two dwellings are listed as separate dwelling units for tax purposes and that the Town has taxed the two as separate dwellings.

Two dwellings have existed and been utilized on the property for year-round residences over three decades without any known objection from anyone on behalf of the Town of Wellfleet despite the variance conditions outlined in paragraph three above.

There will be no change in use.

There will be no increase in use.

There will be no physical change to either dwelling unit.

The use conforms with the objectives of the R30 District as stated in WZBL 3.2

There were three appearances and eight letters in support of the application.

There were no appearances or correspondence in opposition to the application.

There was no objection from the abutters.,

In consideration of fairness to the applicants and considering the failure of the Town of Wellfleet since 1987 with respect to enforcement of the conditions outlined in paragraph three above the board feels that a variance may be granted based on the following criteria pursuant to WBL 8.4.3:

Shape or topography of the land.

Not applicable as the lot has been improved with two dwellings for over 30 years and no change is proposed to the development.

Substantial hardship, financial or otherwise.

The applicants based their purchase on the availability of two dwellings on the property. They did due diligence to ascertain that this was the case and were given no reason by the Town to think otherwise. Losing one of the dwelling units would greatly reduce the value of their property and be a financial hardship for the applicants.

Desirable relief may be granted without substantial detriment to the public good.

 The existing dwellings have been in year-round use since the late 1980s. Granting the variance will have no effect on the physical use of the property or cause any harm.

Desirable relief may be granted without nullifying or substantially derogating from the intent and purpose of this Bylaw:

The purpose of the Bylaw is to prevent multiple dwellings from being constructed on a single lot of land in order to prevent overcrowding and overdevelopment and to preserve the characteristics of residential neighborhoods. However, in this case the second dwelling was built over 30 years ago. The only effect from the applicants’ proposal will be to secure the zoning approval of that long-standing use under the by law and not to create a second dwelling which the bylaw prohibits. As such, there will be no resulting harm to the bylaw.

Bruce Drucker moved the Findings of Fact as written and amended; seconded by Trevor Pontbriand; passed 5-0.  Based upon the Findings of Fact, Bruce Drucker moved to grant a variance allowing two year-round residential dwellings on the subject lot notwithstanding the provisions of WZBL 4.1(5); seconded by Manny Heyliger; passed 5-0.   

Attorney Zehnder requested the Special Permit application be withdrawn.  Trevor Pontbriand moved to allow the Special Permit application be withdrawn without prejudice; seconded by Manny Heyliger; passed 5-0.

7:17 pm

19-22  James Fitzgerald and Denise Backstrom, 400 Long Pond Road, Map 16, Parcel 614:  Application for a Special Permit under WZB 6.24 (National Seashore) to build a detached garage

The Board consisted of Sharon Inger, Bruce Drucker, Manny Heyliger Trevor Pontbriand, and Jan Morrissey.  Mr. Fitzgerald provided updated material on the height of the building and the setbacks as well as total lot size.   This addition does not create any new non-conformities.  Jan Morrissey questioned the calculations provided for the National Seashore, and Mr. Fitzgerald stated he and the Building Inspector did the calculations and they feel they are under 50%.  The calculations on the site plan were done on a certified site plan.  Trevor Pontbriand moved for Findings of Fact; seconded by Jan Morrissey; passed 5-0.

The Applicants seek a Special Permit under WZBL 6.24 to build a detached garage and artist studio on their property.

The property is in the National Seashore Park District.

The ZBA has inspected the property and reviewed the application and  all documents submitted with the application, including the Wellfleet assessors card, the abutters list, the Cape Cod National Seashore Building Area Computations, the Site Plan dated November 2, 2018, and the architectural drawings dated 10/31/18 sheetsA1 through A4.

The lot and dwelling are pre-existing nonconforming with the dwelling having been built in 1955 according to the assessors’ records.

The nonconformity is an undersized lot.

The proposed detached garage and artist studio will not intrude on the setbacks.

Pursuant to WZBL 5.4.3.1 the Maximum National Seashore Park Gross Floor area of the subject lot is 3095 ft.².The addition of the garage/studio will bring the Maximum National Seashore Park Gross Floor to 3023 ft.²

Pursuant to WZBL 6.24.3(6) the proposed development slightly exceeds the Cape Cod National Seashore’s guideline. The ZBA finds that this modest square footage excess will not have a significant adverse impact on the scenic views and on the prevailing scale, mass and character of the neighborhood and zoning district.

The Board considered the Special Permit granting criteria set forth in Wellfleet Zoning Bylaw Section 8.4.2 and finds as follows:

The ZBA finds pursuant to WZBL 8.4.2.1(a) that nearby land uses consist primarily of single-family residences, which will be supported by the continued use of the site as a residence.  Such use will generate traffic patterns, noise and daily activities harmonious and consistent with neighborhood activities

The ZBA finds pursuant to WZBL 8.4.2.1(b) that this consideration is not relevant as the site will continue to be used for a single-family residence and will not displace or preempt other uses.

The ZBA finds pursuant to WZBL 8.4.2.1(c) that roads in the district are a mix of public paved roads and private dirt roads which are adequate to service the site and other homes.  Public utilities provide service to all homes including the site and are adequate.  Drainage is adequate for the location and will not be diminished by the proposal. 

The ZBA finds pursuant to WZBL 8.4.2.1(d) that the site is not more sensitive than most similarly zoned sites to environmental damage as it is of similar soil condition, topography and vegetation as nearby lands. 

The ZBA finds pursuant to WZBL 8.4.2.2(a) that the proposal will not contribute to or diminish the diversity of services or housing opportunities since the use will remain the same as a single-family dwelling. 

The ZBA finds pursuant to WZBL 8.4.2.2(b) that the continued use of the dwelling plus the garage/studio will not add to peak period congestion since there is no meaningful increase in the intensity of the use. 

The ZBA finds pursuant to WZBL 8.4.2.2(c) that this consideration is not relevant as it does not apply to single family residential dwellings which do not provide a service.

The ZBA finds pursuant to WZBL 8.4.2.2(d) that this consideration is not relevant as it is not a business development.

The ZBA finds pursuant to WZBL 8.4.2.2(e) that the proposal will not contribute to affordable housing for year-round residents, but it will not diminish such housing either

The ZBA finds pursuant to WZBL 8.4.2.3(a) that that scenic views from public ways and developed properties have been considerately treated and will not be impaired. The proposed garage/studio will not have significant impact on any scenic views or on the prevailing scale, mass, or character of the neighborhood or the NSP zoning district.

The ZBA finds pursuant to WZBL 8.4.2.3(b) that this consideration is not relevant as parking areas for single family residences are generally not hidden from view, and residences do not contain service areas that are generally associated with commercial activities.

The ZBA finds pursuant to WZBL 8.4.2.3(c) that this consideration is not relevant as the site does not contain or implicate public access to the shoreline, and no proposed activity is contained within the shoreline area.

Regarding the Special Permit granting criteria for properties located within Wellfleet’s National Seashore Park zoning district set forth in WZBL 6.24.3, the ZBA finds as follows:

The ZBA finds pursuant to WZBL 6.24.3(1) that the proposed changes will not significantly change the grade at or adjacent to the site, as the existing and proposed structures are very close to each other.

The ZBA finds pursuant to WZBL 6.24.3(2) that the proposed garage/studio will substantially comply with these criteria.

The ZBA finds pursuant to WZBL 6.24.3(3) that the isn’t any unusual or rare natural and/or historic features at or adjacent to the site, nor do the applicants propose interfering with any existing legal access.  There are no publicly accessible water or other scenic views from the area surrounding the site.

The ZBA finds pursuant to WZBL 6.24.3(4) that there are no unusual or significant environmental resources on site.  The proposed garage/studio will have no material effect on storm water run-off rates and will not cause pollution at the site or its neighboring properties, nor will they result in any decrease in the rate of groundwater recharge.

The ZBA finds pursuant to WZBL 6.24.3(5) that the lighting is consistent with the bylaws and will not interfere with the visibility of the night sky or adversely affect any adjacent property.

The proposal will not be  more substantially detrimental to the neighborhood than the existing nonconformity, and the applicants have  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 National Seashore Park district as provided for in the Wellfleet Zoning Bylaws regarding non-conforming lots and for granting of a National Seashore Park Special Permit.

Trevor Pontbriand moved the Findings of Fact; seconded by Manny Heyliger; passed 5-0.  Bruce Drucker moved to grant the Special Permit for the construction of a detached garage and artist studio on the property as shown on the 11/2/18 site plan and 10/31/18 architectural drawings based on the Findings of Fact; seconded by Trevor Pontbriand, passed 5-0..

Minutes:  Trevor Pontbriand moved to approve the amended meeting minutes of July 11, 2019; seconded by Manny Heyliger; passed 6-0.

Business:

Chair Inger requested the Board make a motion to allow her to write a letter to the Board of Selectmen to have Town Counsel represent the Zoning Board of Appeals in the Habitat for Humanity 40B appeal and  vigorously support the 40B  Comprehensive Special Permit.  She explained that Town Counsel normally monitors appeals but the opposition to the appeal is left up to the developer, Habitat for Humanity.  Jan Morrissey recused herself.  Bruce Drucker moved to allow Sharon Inger write on behalf of the Board and sign the letter; seconded by Manny Heyliger; passed 5-0. 

Trevor[SI3]  Pontbriand moved to adjourn at 8:20 pm; seconded by Bruce Drucker; passed 6-0.

Respectfully submitted,

Christine Bates, Committee Secretary