03/23/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MINUTES MARCH 23, 2011 • Plans call for Lot A as containing 40,012 square feet of upland and Lot B as containing 10,047 square feet of land. Explaining those calculations, Attorney Brodie quoted M.G.L. Chapter 131 Section 40: "The term "Mean annual high-water line", as used in this section, shall mean with respect to a river, the line that is apparent from visible markings or changes in the character of soils or vegetation due to the prolonged presence of water and which distinguishes between predominantly aquatic and predominantly terrestrial land. The mean high tide line shall serve as the mean annual high water line for tidal rivers." Attomey Brodie suggested that the Board condition its Decision to address some of the other issues such as the mailboxes and the street signs. Mr. Nelson said that he disagrees with the plan showing the tie lines are the mean high water line because the tie lines are inside the wetland. He said that calculations must be started right up to the bottom of the vertical banking that exists inside the property. Mr. Nelson said that his upland calculations do not include the land below the bank. Mr. Nelson said that the Petitioner may consider engaging the services of a Botanist to give his opinion to the surveyor. Mr. Bonvie agreed and said that, in most cases, the BVW is substantially higher than mean high water. He said that the BVW may not be higher in this case because of the slope, where there may be a loss of four or five feet of upland. Mr. Bonvie said that the • letter from the Conservation Agent does not address that particular issue. Attorney Patrick Costello said that the appropriate definition of buildable land for lot calculation does not include water or wetlands. By the very definition of wetlands from chapter 131 section 40 - it is that point in the land where it is altered by some sort of tidal flow that would be that delineation point. He said that if there is a marked slope, presumably that slope was caused by the flow of water against that particular portion of land. Attorney Costello said that a plan must show a clear delineation of where the wetlands is and then measurement from that point inland will calculate the upland area. Mr. Nelson said that the plan should show the accurate location and shape of the dock, which is a five -sided figure. Mr. Dickinson said that he will arrange to meet with Engineer Robb Sykes and Conservation Agent Drew McManus on the site to address the Board's issues. Mr. Nelson said that he would volunteer to be at the site visit meeting with the surveyor, the Conservation Agent and Mr. Dickinson. He also suggested that DPW Director Catherine Laurent should attend the site visit to focus on the issue of Monomoscoy Road lying inside the lot. Attorney Costello said that the plan must show that the currently conforming lot contains a minimum of 40,000 square feet of upland, with the residual being left for the Chapter 40B parcel. Attorney Costello said that the revised plan may require movement of the • boundary line which may change the setback waivers that the Petitioner would need for the 40B parcel. 3