07/25/2012 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS 172 Waterway Mashpee, MA 02649 Owner of record: Janice A. McGoldrick Petitioner: Peter and Linda Connly Finding-2012-34 A letter from Paul Morgenstern, abutter at 189 Waterway, expressed concern that the proposal would constitute a substantially more detrimental situation. He opposed grant of Variance relief. Attorney Kirrane stated that, in the past, the Board has not deducted coastal bank from the total square footage of the land area to calculate percentage of lot coverage. After a lengthy discussion, the Board voted to continue the Petitions to request Town Counsel opinion on determining if coastal banks should be considered part of wetlands or upland. At the continued hearings on August 8, 2012, Attorney Kevin M. Kirrane, Architect Timothy Luff and wetlands delineation expert Jack Vaccaro represented the Petitions. The prospective buyers of the subject property, Mr. and Mrs. Peter Connly, were also at the meeting. Attorney Kirrane said that discussions with Town Counsel, Conservation Commission Agent Drew McManus and wetlands expert Jack Vaccaro have confirmed that the coastal bank is not defined as a wetland under the State Wetlands Protection Act. The revised plan shows removal of a small jog from one side of the proposed structure, which will eliminate encroachment into the setback on the westerly side of the building. The proposed patio has also been eliminated, further reducing the lot coverage. At the request of the Board, Conservation Commission Agent Drew McManus attended the meeting to clarify the definition and function of coastal banks. He explained that wetlands have very specific criteria and that wetland resource areas, such as coastal banks, are upland of wetlands. Because the coastal banks as seen in this particular area of New Seabury are manmade, the coastal bank running through the subject property does not qualify as a wetland. He agreed with the lot coverage calculation of 21.22% as shown on the plan. Mr. Paul Morgenstern, 189 Waterway, and the Aronow Family, John's Pond, submitted letters opposing grant of Variance relief. General Findings: The subject property is located at 172 Waterway and consists of 14,000 square feet of land. Written Finding Criteria: §174-17. Continuance; Extensions; Alterations - Lawfully created structures or uses may be continued, although not conforming with the provisions of this chapter. Non- conforming single- or two-family dwelling structures may be changed, extended or altered if such change, extension or alteration complies with the dimensional requirements applicable to the lot under current provisions of§174-31 or, for lots which 2