8/28/1996 ZONING BOARD OF APPEALS Minutes

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amendment done exactly the same way as this one was done. Town Meeting voted to move some units around in different sections and then the Selectmen signed an agreement with New Seabury Company without going to the Board of Appeals . And the Town Counsel then, which was a third and different Town Counsel approved that procedure. All the same procedure, approved by three different Town Counsels- -three different lawyers for this Town in three different years- -1971, 1990, 1995 . Uh. . .more importantly, in 197 . . . the 1971 Modification Agreement was judicially upheld by Judge David Nelson, then Superior Court Judge, who later became a Federal District Court Judge. in the case of New Seabury Corporation vs . Board of Appeals of Mashpee in 1975, Equity Number 32799 and I ' ll get into that. . .uh. . . in. . . in a little bit . But that ' s just an overview. Uh. . . specifically, the agreement in 195, the Modification Agreement, (inaudible) is consistent with the original Special. Permit. Uh. . . I 'm going to quote and. . .and summarize so. . . so it doesn' t take too long, from the 1964 Mashpee Zoning By-Law that was previously alluded to. It said, uh. . . that a few things have to happen. If there' s a large enough parcel, it ' s submitted to the Board and if the Board finds (quote) That the Cluster Zoning principle will fulfill the spirit intent of this by-law without substantial detriment to the public good. " You've heard those words many times before in the Special Permit . That ' s the first half of it . And then the by-law goes on to say, " . . .And if a portion of the registered land is deeded to the Town of Mashpee or which states that in the deed that the land is conveyed subject to bene. . . to. . . to. . . to restrictions . Uh. . .and the restrictions are, " . . .No more than three (3) units per acre and no more than a certain amount of commercial square footage. So it doesn' t talk about uh. . . the Board of Appeals assigning specific units and specific square footage to each section of the twenty-nine (29) sections . It just says the Board of Appeals does one thing, finds that there is no detriment to the public good and finds that this cluster zoning generally fulfilled the spirit and intent of the by-law and that it comes within those two guidelines . No more than three (3) units per acre and no more than a certain amount of square footage. And I can spell out the formula, but clearly, it hadn' t reached that stage. Uh. . .pursuant to that 164 by-law in February, and the month is important . . . February of 1964, the Board of Appeals went ahead and— and found the document called Fact and Decision. And again, Mr. Henchy said he would be sending that to you in the packet . If not, I can send it to you uh. . . and the Building Inspector has that also. I have a copy here tonight if anyone wishes to see it. Specifically, the Board found all of those things I just said. (Quote) . . . "The Board finds (this is the Board of Appeals) that the total number of dwelling units permitted is less than three (3) dwellings units times the number of acres of registered land. And the Board finds that there is less square feet of area to be devoted to commercial uses than -6- i` l V