11/10/2010 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS 12 Brookside Circle Mashpee, MA 02649 k Appellant: James Regan Owner of Record: Barry J. and Laura J. Marsolais A-10-44 Correspondence dated September 16, 2010 from Building Commissioner Richard Stevens to Attorney Gildea reads: "The current setbacks for Cluster Subdivisions in the Town of Mashpee are 30 feet from the front, 15 feet on the sides and 20 feet at the rear. These are the only setbacks I would be able to enforce under the Town of Mashpee Zoning Bylaws." Mr. Stevens said that there is no definition in the Zoning By-laws referring to a building line. He said that the subject property is a buildable lot. Mr. Furbush said that the current owner has been paying taxes on a buildable lot for years and he should be allowed to build on the lot. Attorney Gildea countered that he was not saying that the lot could not be developed, but that the owner should be required to adhere to the subdivision plan as approved by the Planning Board and as recorded at the Registry. Attorney Gildea quoted Section 174-21.1) of the Zoning By-laws, which states: "Building lots in cluster subdivisions created under previous provisions of the Mashpee Zoning By-Law not requiring a special permit may be developed pursuant to the lot size, frontage and setback regulations applicable to the original approval of said subdivision, but subject to any other currently applicable provisions of this by-law." He suggested that the owner could apply to the ZBA for Variance relief to allow for development of the parcel. Mr. Bonvie said that there is a substantial difference between "maybe" and "will be" and suggested that the word "maybe" indicates that interpreting the applicable setback requirements should be left to the good judgment and authority of the Building Commissioner. Mr. Reiffarth pointed out that the three abutting lots are twice the size of the subject property and could easily comply with the 60-foot setback. He said that the owner of the subject property has a significant hardship to conform to a 60-foot setback. Attorney Kevin M. Kirrane represented Mr. and Mrs. Marsolais, owners of the subject property. He said that he agrees with the Building Commissioner and that the setback requirements as set forth in the By-laws should be enforced. Attorney Kirrane said that the Conservation Commission has approved plans for a three-bedroom dwelling which does comply with the 30-foot front setback requirements on the subject property. The owner of the property has not yet applied for a building permit. GENERAL FINDINGS: The subject property is located at 12 Brookside Circle and consists of 16,600 square feet of land. CHAPTER 40A Appeals to permit granting authority Section 8 An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain 2