08/14/2019 ZONING BOARD OF APPEALS Minutes

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MASPEE ZONING BOARD OF APPEALS MEETING MINUTES AUGUST 14,2019 Ron mentioned he had a discussion with Town Counsel regarding his interpretations of the bylaw §174.17.1 that was passed at Town Meeting back in October 2018. Attorney Kirrane addressed the Board stating that the bylaw states one cannot create a new non-conformity,which would require variance relief. The non-conforming condition is the front yard setback. One can alter or extend that non-conformity but one cannot create a new non-conformity. If the applicant had a conforming setback of 40 ft., and he wanted to change to 30 ft., he is creating a variance situation which is a new non-conformity. But altering or extending an existing non-conformity does not require a variance, it merely requires a special permit from the Board, and a finding that it is not substantially more detrimental. In this particular case, the setback is 37 ft., and moving to 30 ft., but the requirement is 40 ft. At 37 ft., it is already a non-conforming front yard setback condition. He is increasing or altering that non-conformity, but not creating a new non-conformity at 37 ft. The Board reviewed the site plan and determined that the average setback with the abutting neighbors is 40 ft. Jonathan asked Evan Lehrer, Town Planner if he could comment on the §174-17.1; if someone can extend a non-conformity on a raze and replace. Evan said he agrees that the bylaw is specific, and he also agrees with the Attorney Kirrane and the applicant's discussion with the Board. Charlie said the applicant could have applied for a building permit for this issue only, he would site §174-31 fn. 6,because the average is 30 ft. and conforming to the adjacent lots. Bill Blaisdell said in his opinion either way interpreting the"average setbacks"or the way the bylaw is written and approved; he agrees with the applicant. Ron asked Charlie if a motion were made for a Special Permit, would that be acceptable. Charlie said; yes. There were no more comments from the Board or audience. Sharon read the Board of Health comments and abutter letters into the record. Ron made a motion that the Board issues a Special Permit to Kevin M. David Trustee of the David Family Realty Trust of 2 Santuit Lane under §174-17.1 of the Zoning Bylaws to raze and replace a pre-existing non-conforming single family structure on property located in an R-5 Zoning District, Map 30 Parcels 22 & 23, Mashpee, MA, with the following conditions; 3