8/28/1996 ZONING BOARD OF APPEALS Minutes

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permitted in the Cluster By-Law. " And the Board concluded unanimously, by the way, that this development of registered land on the Cluster Zoning principle will (quote) , . . .Will fulfill the spirit and intent of the Mashpee Zoning By-Law (end quote) • " So by this General Finding in February of 1964, the ZBA completed its role, it finished. It has fulfilled its role under the 164 Zoning By-Law. Then. . . then pursuant to that 164 By-Law, in July of 164, five months later, Popponesset Corporation was . . .was the predecessor to New Seabury, executed a deed which conveyed a portion of this registered land to the Town of Mashpee and it ' s in the deed, a copy of which I had for you. . . I think Mr. Henchy showed it to you, has a very long list, very detailed. Twenty- nine (29) sections on the left column, how many units in each section and how many commercial square feet in each section. That ' s only in the deed, none of that is in the February Decision of the Board of Appeals . That ' s very important . Uh. . . there is no specific listing of dwelling units or commercial square footage in the Facts and Decision made by the Board of Appeals in February of ' 64 . . .very, very important . Uh. . . and the reason for that is because that wasn' t the function of the Board of Appeals . The function of the Board of Appeals as stated specifically in the By-Law was to make a general finding that this cluster had no more than three (3) units per acre, had the sufficient amount . . .had. . .had no more than the maximum number of square feet and that this fulfilled the spirit and intent of the By-Law. Instead it was the July 164 deed that listed all those specific uh. . .units and specific square footage that . . . that was changed by vote of the Town Meeting in 1990 with the contract that the Selectmen signed in 1995 . Therefore, it ' s proper that the parties to the May 1995 Agreement can only be the exact same people who did the deed, New Seabury Corporation and the Town of Mashpee, through its Board of Selectmen. Not the Board of Appeals, because the Board of Appeals wasn' t involved in the deed. This. . . the 1995 uh. . .uh. . . Modification Agreement is not an amendment of a land use Special Permit over which the ZBA has jurisdiction. What we' re doing—what we did in 1995, in the 1990 . . .what the Town Meeting did was a Modification of the Restrictions in the July 164 deed, which didn' t change the total density of three (3) per acre, or the commercial square footage, it merely reallocated between sections . And this was voted by Town Meeting. Town Meeting wanted to do this . It voted in 1990 . And then contract and. . . the Selectmen contracted to do this as authorized by Town Meeting in 1994 . . . 5 (1995) . The reason the Town did this by the way, just historically, for those of you who may not remember, is that there. . . some of these. . . these four hundred units that were being moved over were going to be in. . . in the old section was right ht next to South Cape Beach. And the Town didn' t want units there. It wanted to move these units away from South Cape Beach and what was then a designated ACEC, area of critical environmental concern. So, the Town wanted to move this . . . these units over. And in addition, as some of you may remember, the Town received k -7-