11/10/2004 ZONING BOARD OF APPEALS Minutes

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MERRICK, LOUISON & COSTELLO, LLP Mashpee Zoning Board of Appeals December 8, 2004 Page 2 Surveyors. These twenty-eight (28) parcels are each subject to the restriction "that no structures shall be erected thereon",with the apparent intent to preserve the right of passage over the way identified as Rock Island Road. For the purposes of the MacKinnon Petitions for Special Permit and Variance, the two parcels described in the 1991 Deed, containing 3,000 and 6,000 square feet, respectively, are separated by Rock Island Road, as specifically noted in the description of Parcel 2 in said Deed. With respect to the zoning relief requested by Mr. Flanders, on behalf of Mr. MacKinnon, you have requested my opinion as to whether the MacKinnon property should be considered a single 9,000 square foot lot or two separate lots (containing 3,000 square feet and the second containing 6,000 square feet). In my opinion,pursuant to the definition of"Lot" set forth in the Mashpee Zoning By-law, this property should be considered two separate lots for zoning purposes. The starting point in any analysis of dimensional requirements under a Zoning By-law is a determination of what constitutes the "lot" to which the zoning requirements apply. This determination based upon the specific definition of a lot and the related provisions in the Zoning By-law. The Mashpee Zoning By-law, at Article I,Section 174-3.A. defines a lot as follows: "The whole area of a single parcel of land undivided by a street, under one (1) ownership,with ascertainable boundaries established by a Deed or Deeds of Record, or a segment of land ownership defined by lot boundary lines on a land division plan duly approved by the Planning Board under the Subdivision Control Statute". (emphasis added). "Lot Area" is defined as "the area of a lot exclusive of any area in a public or private way open to public use and any body of water". A"Street" is defined in the By-law as follows: "A public way laid out by the Town under M.G.L. Chapter 82, Section 21, or other authority or laid out by the state or county, which is open to travel by the general public and is on record at the Registry of Deeds or a public or private way duly approved by the Planning Board under the Subdivision Control Statute, or a way on record at the Registry of Deeds which is approved by the Planning Board as a principal means of adequate access to abutting property". Given the above-referenced definitions set forth in the Mashpee Zoning By-law, and the fact that a portion of the MacKinnon property, approximately 40 feet wide and 50 feet deep includes the layout of Rock Landing Road, as depicted in the above-referenced Subdivision Plans, in my opinion the proposed new structure to be developed on the MacKinnon property is located on a 6,000 square foot lot. All dimensional requirements and other regulations could be applied to this proposed structure, accordingly. To construe the MacKinnon property as containing 9,000 square