04/27/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS Peter Costill 37 Monomoscoy Road West Mashpee, MA 02649 SP-2011-12 Mr. George Leach, a direct abutter at 30 Overland Road, said that Overland Road is a private road which his family installed in the 1960's. Mr. Leach said that he is opposed to a large structure such as a garage, which could be used as a weekend retreat. Mr. Jonathan Ellis represented the Southwick family, also direct abutters. He said that they object to the proposal because the Petitioner will be transporting his boat across their property in order to access the water. Attorney Brian Wall represented Mr. Jack Carter, a resident of 17 and 20 Monomoscoy Road West. Attorney Wall said that the Petitioner is not eligible for a Special Permit under Section 174-25.H(7) because a boathouse is not specifically mentioned in the By-law nor does the By-law use the phrase `other uses'. He referred to Section 174-24.C(2) concerning Special Permits and stated that the proposal to use the small sliver of land for a boathouse is not consistent with Town By-laws. Attorney Wall stated that the proposal does not meet the setback requirements, a pre-requisite for grant of a Special Permit. He said that this Petition amounts to a request for a use Variance. He claimed that the Petitioner cannot establish hardship because the Petitioner was aware of the Zoning By-laws when he bought the property in 2002. Mr. Carter said that he is concerned with the Board setting a precedent for other property owners in the area who will try to develop their undersized lots in a similar manner. After being questioned, Mr. Costill admitted that he plans to sell the subject property. The Board decided to forward the Petitions to Town Counsel for legal opinion and continued the Petitions until May 25,2011. At the Public Hearings on May 25, 2011, Mr. John Slavinsky of Cape & Islands Engineering represented the Petitioner and said that the proposal will be called a garage rather than a boathouse. He said that the proposal does not cross over any other properties. The Conservation Commission has issued an Order of Conditions. Attorney Patrick Costello attended the meeting as legal counsel for the Board. He quoted Section 174-24.J of the By-laws and stated said that this Section gives the Board the authority to vote in favor of a use, such as a boathouse, that is similar to a use that is allowed under the By-laws. He also stated that the wording in the Decision could reflect the word `garage', even though the proposal was advertised as a boathouse. Attorney Costello said that Section 174-25.H.7 of the Zoning By-laws gives the Board discretion to determine if a Variance can be granted. Attorney Costello said that this Section does not mention lot coverage `as set forth in the Table of Use Regulations'. He said that this Section of the By-law allows for permit issuance of Petitions for a Special Permit and a Variance. 2