10/13/2004 ZONING BOARD OF APPEALS Minutes

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t 44. The proposed new building on Locus will have a direct and adverse affect on the Plaintiff. 45. A controversy has arisen as to whether the Mashpee Zoning By-Laws and M.G.L. chapter 40A, sec. 6 require the issuance of a variance for the proposed new structure. 46. The Land Court has exclusive jurisdiction to determine the extent a zoning by-law affects the proposed use, enjoyment, improvement, or development of the land at issue pursuant to M.G.L. c. 240, sec. 14A. 47. Locus is located in an R-3 Zoning district. In accordance with the Town of Mashpee— Land Space Requirements Table, (Located after Section 174-30 of the Zoning By- Laws) an R-3 zoning district requires 40,000 square feet of area and 150 feet of frontage, 40 foot front yard setback and 20% lot coverage. (A copy of the Land Space Requirements Table is attached as Exhibit F) 48. Locus does not meet any of these requirements. 49. Section 174-17 of the Mashpee Zoning By-Laws governs the alteration of non- conforming structures in the Town. Is specifically does not allow a non-conforming structure to be expanded into the setback areas. 50. The Plaintiffs seek a determination from this court that the Town of Mashpee-Land Space Requirements of the Zoning By-Law require the issuance of a variance not a special permit for the proposed building to be constructed on Locus. 51. The Plaintiffs believe and therefor aver that they and the named defendants are all parties having or claiming any interest, which might be affecting by any ruling of the court under these proceedings. WHEREFOR the Plaintiffs pray: a. That this court make a determination of rights interpreting the Mashpee Zoning By-Laws relative to the use and development of Locus. b. That this court declare that a proposed single family residence may not be built on Locus without a variance being issued by the Zoning Board of Appeals. c. And for such other relief as this court may deem just and equitable. 1 r 7