04/13/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE.ZONING BOARD OF APPEALS APRIL 13, 2011 MINUTES • Wall said that this proposal will adversely impact Mr. Carter's ability to enjoy his property. Attorney Wall said that Mr. Carter is also concerned with the safety of children being attracted to the dock without adult supervision. Attorney Wall said that the Petitioner must establish hardship and demonstrate that granting the Variance will not derogate from the intent and purpose of the By-law. He said that the title on the property reveals that it has been in the Stow family since 2002 with inter -family transfers. A deed recorded in 2009 shows a transfer of interest in property with the new owner as Elizabeth Stow, Trustee. Attorney Wall said that she "is a new legal entity, separate and distinct from Mr. and Mrs. Stow who owned it before". He said that "Mrs. Stow, the Trustee, acquired the property with full knowledge about the problems regarding the dock, and therefore, she can't claim any kind of hardship to ask for Variances" and "she was well aware of the hardship issues before she purchased". Attorney Wall said establishing setback requirements prevents crowding and ensures that residential neighborhoods have adequate separation from each other so that the owners can have peace and tranquility. The subject lot is only 25 feet wide with 15 -foot setback requirements. Attorney Wall asked the Board to deny the request for a Special Permit and a Variance. Mr. Nelson said that he measured the distance between the existing wooden piers, center line to center line at the mean low water, at 112 feet. Attorney Wall said that under Chapter 91, anyone constructing a dock must receive a license from the State because the land below the low water mark is owned by the Commonwealth of Massachusetts. He also said that State • policy is for anyone proposing construction of a dock within 25 feet of an extended property line to receive permission of the abutter before the dock can be built. Mr. Furbush questioned the argument about the dock as a principle use versus accessory use. Attorney Wall said that any use not mentioned in the By-law is prohibited. He said that his interpretation of the Mashpee By-laws is that there is no way for a dock to be applied for as a "primary" use under the Mashpee By-laws. (See Section 174-25.H.7 referenced above). Mr. Jack G. Carter, Jr. said that he is concerned that his peace and enjoyment will be disturbed by the construction of more docks in the area. He said that: "I can subdivide a little 25 -foot out here. From what I heard, I'd have one uncompliant lot and I'd still have a 40,000 square foot lot. Put a dock on it and sell it for $150 grand." Mr. Carter said that he is concerned about "opening the floodgates and all these little slivers of land are going to end up with docks on them and ruin the whole atmosphere and the environment." Mr. Blaisdell corrected Mr. Carter's comment based on what "he had heard here tonight" that he would be able to subdivide his lot and build on it. Mr. Blaisdell said that the Board has not ruled on the Chapter 40B Petition yet. Mr. Blaisdell made a motion to continue the hearing until May 25, 2011 to allow the Petitioner an opportunity to obtain comments from other Town Departments and Commissions. Mr. Furbush seconded the motion. Mr. Dorsey voted yes. Mr. Reiffarth voted yes. Mr. Nelson voted yes. Mr. Blaisdell voted yes. Mr. Furbush voted yes. Vote was • unanimous. REOPENED HEARING: 7