04/13/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS APRIL 13, 2011 MINUTES • Mr. Slavinsky said that in 2009, Mr. Stow installed a 6' x 8' travel trailer for storage of personal watercraft on the lot. After being notified by the Town to apply for a Special Permit from the Building Department and a Variance from the ZBA to allow for the trailer, Mr. Stow decided to remove the trailer. The Board commented on the close proximity of this latest proposal to the existing docks on either side and expressed concern about the potential for navigation issues. Mr. Hinden questioned if the dock could be installed at an angle to allow for more distance between the docks. The Board expressed concern with the dock being installed on property that is not within sight of the owner's residence. Mr. Bonvie questioned why a small piece of property is going to be used for a dock that will create liability. Mr. Nelson said that there are many 25 - foot lots all along Monomoscoy with docks. Mr. Slavinsky said that many docks exist in Town that are owned by seasonal people. The Board instructed Mr. Slavinsky to obtain comments on this proposal from the Conservation Commission, Shellfish Commission, Waterways Commission and the Harbormaster. Attorney Brian J. Wall addressed the Board in behalf of his client Mr. Jack G. Carter, Jr. Mr. Carter owns 17 and 20 Monomoscoy Road West and is a direct abutter to the subject property. Attorney Wall insisted that the proposal is allowed only as an accessory use. (Part of Attorney Wall's subsequent argument was based on the erroneous opinion that the dock is • only allowed as an accessory use. While this is an allowed use, the proposal does not meet the setback requirements. Therefore, the ZBA must determine whether hardship exists and whether Variance relief can be granted). Mashpee Zoning By-laws allow for this proposal under Section 174-25 - TABLE OF USE REGULATIONS - Subsection H -OTHER PRINCIPLE USES (7): "Private one or two -car garage, greenhouse, or dock as a principle use where the lot cannot be developed with a principle residential use, provided that there be no commercial use or storage outside of buildings, that no structure exceed fifteen (15) feet in height and that all applicable setbacks and lot coverage requirements are met and approved, that a special permit for such use is approved by the Board of Appeals." Attorney Wall said that the proposed planting of the huckleberry patch as a primarily agricultural use, with the dock as an accessory use, does not meet "eligibility". He said that this does not establish the proposal as a farm or livestock or farm stand and the dock is not "incident or subordinate to" the principal use of agriculture. Attorney Wall quoted 174.25.I(9): "The Board shall not grant the special permit if the structure will unduly interfere with free passage of travel by water". Attorney Wall said that Mr. Carter bought his property specifically because it had an existing dock. Attorney Wall said that constructing this dock between two other existing docks will result in unreasonable interference with safe boating. • Attorney Wall quoted 174-24.C.(2) which provides that a Special Permit may be issued only if it is determined that the proposed use or development will not adversely affect public health or safety and will not have a significant adverse impact on neighboring properties. Attorney 6