03/28/2012 ZONING BOARD OF APPEALS Decision

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MASHPEE ZONING BOARD OF APPEALS Mashpee Wampanoag Tribe 483 Great Neck Road South Mashpee, MA 02649 V-2012-10 21. The property is bordered on the north by Town-owned conservation land, on the east by Great Neck Road South, on the south by other Tribal Land and on the west by private landowners. 22. None of the private land owners came forward at the hearing to express concerns with the proposed building. DECISION The provisions of M.G.L. c. 40A, §10 authorize local zoning boards to grant variances where: (i) "owing to circumstances relating to the ...topography of [the] land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located; and (ii) "a literal enforcement of the provisions of the [zoning] by-law would involve substantial hardship, financial or otherwise, to the petitioner..."; and (iii) [the requested] relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such—by law. The Board finds that the evidence presented at the hearing for this matter supports a finding with respect to each of these statutory requirements. First, the Board finds that the steep slope located at the back of the Subject Property is the reason the proposed building is considered to be three stories high, rather than two. Because the proposed building is built on the sloped area of the property, the building must contain a walk-out basement for safety purposes. It is this walk-out basement which causes the property to be three stories. From the front, the building is only two stories. Further, because there are ancient burial grounds and Pow-wow fields located on the property, there is no alternate location for the building other than upon this sloped area of the property. Second, a government building is allowed as of right in an R-3 zoning district. The Petitioner produced evidence at the hearing on this Variance Petition indicating that any governmental building must be sufficiently large in size to provide the Tribe with necessary government resources. The proposed building is of a sufficient size to serve the Tribe's needs. Requiring the Petitioner to build a smaller structure would be a hardship and would deny the Petitioner the right to reasonably utilize the Subject Property. Finally, the property is bordered on the north by Town-owned conservation land, on the east by Great Neck Road South, on the south by other Tribal Land and on the west by private landowners. None of the private land owners came forward at the hearing to 3