11/28/2018 ZONING BOARD OF APPEALS ZBA Decision

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MA HPEE ZONING BOARD of APPEALS DECISION FOR AN ADMINISTRATIVE APPEAL To THE BUILDING COMMISSIONED William R. Haney 40 Great fleck Road South(Map 99 Parcel 40-0 Mashpee, MA 04 APPEAL-2018-33 Attorney w'all's second argument invol ed a"use"being inimune from zoning,and changes from immunity to non-conformity. He discussed particular case law in detail with the Board that supports his arguments regarding`ruse", grand-fathering, and immunity. He specifically mentioned the Roma III case that removes the immunity from zoning and subjects helipads to the Town's zoning bylaw. He said that the Town cannot enforce its Zoning Bylaw against Mr. Haney's helipad because Massachusetts decisional lav holds that,-when an immune structure or use loses its immunity, it is considered to be a lawful, preexisting nonconforming use. His third argument was retro-activity as he described in his letter dated Jure 1. 2018 attached to his petition. He believes that "'grand-fathering" F does apply,and this is a pre-existing,non-conforming use, and is retro-active, The Board had a discussion and voted to continue the hearing in order to receive clarification from Town Counsel regarding retro-activity and immunity. The Board did not receive comments prior to the next scheduled hea n*ngs and therefore the applicant requested to continue the Appeal hearing ffarther pending a response letter from Town Counsel. On Wednesday, August 22, 2018 the following Board Members were present and acting on this continued hearing; Chairman Jonathan D. Furbush, Board Members, Scott Goldstein, Norman J. Gould, Associates Brad Pittsley and Sharon Sangeleer. Chairman Furbush announced he received information from Town Counsel that suggested the applicant apply for a special "us6" finding. The hearing was continued further pending Attorney wall's consultation with his client. On Wednesday, November 28, 2018, Chairman, Jonathan D. Furbush, Board Members, Scott Goldstein, Norman J. Gould, and Associate Members, Brad Pittsley and Sharon Sangeleer were present for this continued hearing. Attorney Wall approached the Board and said he disagreed with the opinion 'f Town Counsel, at the last hearing he asked for a continuance to prevent a final decision on that matter because the Town Attorney also suggested that the applicant or the property owner might be able to get relief for afinding under Section 174-24(K) detemM`ng that -the use'is-substantially siilar to other allowed uses and not substantially dissimilar to prohibited uses.Attorney Wall then asked for a continuance of the appeal simply to prevent a decision from being entered which would have necessitated an appeal. 2