02/23/2011 ZONING BOARD OF APPEALS Minutes

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r MASHPEE ZONING BOARD OF APPEALS FEBRUARY 23, 2011 MINUTES drew a 'line in the sand' reflecting the conditions of 7-14-2010 for use in my computations. In retrospect,.) could have noted that the area of the lot is 40,000 S.F. plus or minis, as is standard practice for Land Surveys in the Commonwealth. I may amend the plan with that information if deemed advisable. For the purposes of calculating upland area, I considered that land above MHW is upland. I did not note any wetlands as defined by CMR 310 that are above MHW. The encroachments mentioned are not legal impediments, as adverse claims of Registered Land are unenforceable. A fence may be built along the property boundary in the driveway. The traveled surface of Monomoscoy Road does not encroach. The small encroachment of Russell Road is due to disturbance by water main construction and not due to public use. The water main does not encroach. Sincerely, Robb B. Sykes, PLS" Attorney Brodie said that the Planning Board has the authority to create a lot too small for building purposes. He referred to 1980 Case Law - Smalley vs. Planning Board of Harwich 10 Mass Appeals Court 599, in which the court held that creation of lots that do not conform to zoning requirements is not fatal to either ANR endorsement or to definitive plan endorsement. However, the lot created by the Planning Board is not buildable. After creating the unbuildable lot, the Petitioner must now request a Comprehensive Permit from the ZBA to make the lot a buildable lot. Attorney Brodie said that the Petitioner would be agreeable to removal of the `pork chop' portion of the undersized lot. Mr. Nelson said that the plan is unacceptable because it was altered - seemingly after the Planning Board signed it. He also stated that the mean high water and uplands are two different things. Mr. Bonvie agreed and said that Mr. Sykes' statement that "the land above mean high water is upland" is incorrect. Mr. Bonvie said he had some experience on that subject matter, having served for 15 years on the Conservation Commission in the Town of Mansfield. He said that many factors are involved that would preclude land from being counted as part of the total square footage for a lot. Mr. Bonvie said that it may require a botanist to identify the BVW, mean high water and upland. Mr. Nelson read the following comments made by Town Counsel Patrick Costello during a February 18, 2011 meeting: "A person cannot split a conforming lot and create a non -conforming parcel on the developed portion of the lot. Cannot create a non -conforming parcel from a conforming parcel —the lot then becomes unbuildable. I have never heard of this being done under the guise of Chapter 40B. This would set a dangerous precedent. It flies in the face of what zoning is all about. The ZBA would have a compelling argument if a Decision to Deny was appealed Has the Petitioner approached the abutter - Mr. and • Mrs. Steven Hynds - about granting an easement to access part of the abutter's driveway which lies inside the subject property Town encroaches on the lot as a N