09/12/2012 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS DECISION FOR A VARIANCE: DENIED Janet E. and Barry Krock, Trustees 4 Cross Street Mashpee, MA 02649 V-2012-43 DECISION After a public hearing on this matter, the Board found that there was, nothing unique about the soil conditions, shape or topography of the subject property which supports the Petitioners' allegation of hardship and warrants the grant of a Variance of the Town's lot coverage and density requirements. While the Board acknowledges that a denial of the requested zoning relief will prevent the Petitioners from building the 3,000 square foot dwelling they desire to erect on the locus, the Board does not consider this to be, per se, a `hardship' under M.G.L. c. 40A, §10 because the Petitioner could build a smaller dwelling within the footprint of the current, pre-existing non-conforming structure on the locus. The Board is not persuaded that the fact that the Petitioners believe their tax assessment valuation is excessive, considering the current dwelling on the site, constitutes a hardship for Variance purposes. Adequate remedies at law are otherwise available to the Petitioners to seek redress of this tax assessment issue. Accordingly, the Petitioners will not be denied beneficial use, occupancy, and value of the subject property for residential purposes due to the denial of this Variance request. Further, it is clear from the testimony and evidence introduced at the public hearing that the increased size and lot coverage of the proposed dwelling will contravene the purpose and intent of the Zoning Bylaw, which includes regulating the size of structures and density of lots within residential districts. The Board also concludes that the proposed new structure would be adverse to the public interest by virtue of its impact on coastal vistas, the resultant increase in stormwater runoff onto neighboring properties and into adjacent waterways caused by a decrease in permeable area on the lot, and impacts on the stability and maintenance of the coastal bank abutting the parcel to the rear. The measures proposed by the Petitioners' representatives do not fully mitigate the effect of these concerns. Accordingly, the Board believes that a grant of the requested relief would cause substantial detriment to the neighboring properties and, therefore, be detrimental to the public good. Finally, the Board deems it noteworthy that there is no zoning district in the Town where 30% lot coverage is permitted. The most expansive lot coverage requirement set forth in the By-laws is the 25% lot coverage allowed in an I-1, Industrial District. The reason for the Town's lot coverage restrictions is to prevent overcrowding and to control density, which interests the Board deems to be particularly compelling in residential districts. By granting the Petitioner's request for a Variance to permit a 30% lot coverage ratio, the Board believes that it would be substantially derogating from the purpose and intent of the Town's lot coverage By-law and adversely impacting the public interest. Accordingly, the Board finds that the Petitioners have not met the criteria for the grant of a Variance under M.G.L. c. 40A, §10 and the Mashpee By-laws §174-28 and 174-31. As such, the Board votes to DENY the Petitioners' Variance Petition. 5