07/13/2011 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS Paul Tragiannopoulos 593 Main Street Mashpee, MA 02649 Finding of Fact: FoF-2011-29 The Petitioner claims that the current use of the property as a vehicle/heavy equipment metal refinishing and refurbishing business is substantially similar to the use set forth in Section 174-25.I(6) of the Town's Zoning Bylaws which allows, "[t]he use of a portion of a dwelling or accessory building hereto by a resident builder, carpenter, painter, plumber, mason or other artisan or by a resident tree surgeon or land-space gardener for incidental work and storage in connection with his off-premises occupation, provided that there is no external change which alters the residential appearance of the building"in an R-5 Residential Zoning District. Based upon the Findings set forth above, the Board agrees that the current use of the Subject Property for a vehicle/heavy equipment metal refinishing and refurbishing business is NOT substantially similar to the uses set forth in Section 174-25.I(6) of the Town's Zoning Bylaw. The current use of the Subject Property produces more traffic and has a greater environmental impact than the occupations listed in Section 174-25.I(6). In addition, Section 174-25.I(6) only allows for use of property located in an R-5 Zoning District for "incidental" work and storage related to an "off-premises" occupation. Section 174-25.I(6) does not permit an individual or entity to conduct the occupations listed therein solely in an R-5 Residential Zone. As noted in the Findings set forth above, the Petitioner's principal and only place of business for his vehicle/heavy equipment metal refinishing and refurbishing business is located on the Subject Property. The Petitioner does not have any other off-premises locations from which he conducts the majority (or any part) of his vehicle/heavy equipment metal refinishing and refurbishing business. Accordingly, the work conducted by the Petitioner at the Subject Property is of a greater intensity than permitted by Section 174-25.I(6). Finally, Section 174-24.J prohibits the Zoning Board of Appeals from allowing any use in a particular zoning district that is specifically prohibited under the Table of Use Regulations for that district. The Town of Mashpee Zoning Bylaws §174-25.H(1) prohibits, "any trade, industry or other use that is noxious, offensive or hazardous by reason of vibration or noise or the emission of odors, dust, gas, fumes, smoke, cinders, flashing of excessively bright light,refuse matter or electromagnetic radiations" in an R-5 Residential Zoning District. As noted above, the Zoning Board of Appeals specifically found that the current use of the property as a vehicle/heavy equipment metal refinishing and refurbishing business is a trade, industry or other use that is noxious, offensive or hazardous by reason of vibration or noise or the emission of odors, dust, gas, fumes and smoke. Accordingly, the use requested by the Petitioner is currently a prohibited use in an R-5 Zoning District under the Town of Mashpee Table of Use Regulations. As such, the Zoning Board of Appeals does not have authority to allow such a use under 174-24.J. Upon motion duly made and seconded, the Zoning Board of Appeals voted unanimously at the Public Hearing on July 13, 2011 to DENY the Petition for a Finding of Fact. 4