04/13/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS APRIL 13, 2011 MINUTES Attorney Brodie read MGL chaptcr 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." Attorney Brodie said that in the absence of a BVW, everything upland from the mean annual high water line, which in this case is the mean high tide line, is upland, by definition of the statute. Attorney Brodie stated that the Petitioner has done everything to satisfy the Board and has spent funds on extra surveying costs. He said that the proposal has complied with requests from other Town Departments, including the Board of Health, Conservation Commission and the DPW. The Petitioner has also agreed to accommodate the ZBA's request regarding placement of street signs and mailboxes. Mr. Nelson said that all of the documents regarding this Petition will be sent to Attorney Costello, who will compose the Decision. If Attorney Costello concurs with the plan, Mr. Nelson said that he will not continue to pursue the issue of the upland. If Attorney Costello questions the plan, the plan will need to be revised. Mr. Sykes offered to revise the plan and note the upland/wetland delineation line with mylar. Mr. Nelson said that the property calculations would need to be reconfigured. Mr. Bonvie 0 suggested that Mr. Sykes could draw a line from stake to stake on one of the earlier submitted plans, calculate southbound from those stakes the square footage of the lot and label that 'high water and the extent of wetland line'. He said that instead of moving the line, the older plan can be revised with a line showing the location of the stakes. Mr. Nelson said that the biggest problem is that the last stake nearest the water is not on the subject property. Mr. Sykes said that the deed states that ownership is to high water. Mr. Bonvie said that this is problematic because the line has moved to show high water, but the Board is looking for high water and/or BV W to show upland. Mr. Nelson said that the discrepancy on the three plans on the line coming in from Russell Road to the end of the line showing 83.53 feet, 14.79 feet and 20.35 feet must be resolved. The Board wants to ensure that the West family has 40,000 square feet of upland in order to eliminate any problems should they decide to sell their property in the future. Attorney Brodie said that if the West family had created a lot that is less than 40,000 square feet, the onus would be on the West family. The Board repeated 'that a person cannot subdivide a piece of property and create two non -conforming lots. One of the lots must conform. Attorney Robert Finnegan, representing Mr. and Mrs. Steven Hynds, said that the Petitioner has failed to submit a plan showing delineation of the upland line. He said that his clients would like an opportunity to have the final plan reviewed by their surveyor, Mr. John Slavinsky, before the Board sends documents to Town Counsel. He said that he is also confused by the inconsistencies in the plans, specifically the March 23rd plan showing a • bound line of 397.17 feet, but the April 1 lth plan shows that distance as 298.85, a discrepancy of 98 feet. 2