10/27/1999 ZONING BOARD OF APPEALS Minutes

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Mashpee Zoning Minutes—October 27 1999 4 Board of Appeals Mr.Nelson moved to grant the Variance, statingthat the e distance from the end of the paved road to the proposed building is minor and that the 'unpaved portion of the road is . in good condition. Mr. Guerrera seconded. All agreed. r. 4ii {i.p' Kenneth E. Litvack--Requests A Petition q for an Appeal of the Building Commissioner's decision to deny a building permit to allow for construction of a garage on property located at 11 Taffrail Way(Map 106 Bloek 7 )Mash pee,p a AIA• Sitting: James E. Regan III Robert g G.Nelson and Richard T. Guerrera. The Board members stated that the applicant has taken the Board's 1 decision 998 decision to deny his application to construct a garage to litigation. The are of the ' decision . Y opinion that any decision on the application should be delayed until the litigation issue is g resolved. Attorney Stephanie Kiefer represented the applicant and stated .. pp that the proposal is for a detached garage. She said that the existinghome predates p present zoning requirements. Attorney Kiefer claimed that the zonin do not affect g changes g the subject building since it is a pre-existing structure. r .ty. Attorney Kiefer referred to three ways in which the • Y building does not conform with present zoning requirements: lot coverage (2 1%vs.20%required), frontage `} q }, feet vs. 40 feet required) and coastal bank buffer zone (9.1 feet vs. 50 feet required). The • i al plans have been changed to include gabions (baskets with rocks}that will extend anon the coastal bank,providing bufferin Two g � p g g o corners of the proposed construction closest to the wetlands have been cut back to increase the distance from the = a, garage to the edge of the coastal bank and decrease lot coverage. Attorney Kiefer stated that the application for the building g permit stated that the permit should have been issued and that there is no need for Variance relief because of the Kx Pre-existing, non-conforming nature of the structure under Section 174- 17 of the Zoning , By-laws. She further stated that the Building Inspector denied the permit because of the {� setback from the water and the wetlands. AttorneyKiefer claimed that . this setback is similar to all other setback requirements since pre-existing,non-conforming � g, rnling 5ti`11CtureS have protection under the specific By-law created for them. Attorney Kiefer stated that there is no case law in Massachusetts that supports Mr. Hauck's denial of the permit. Mr. Hauck's correspondence referred to another case involving the Seventh day Adventists. AttorneyKiefer stated that Section tion 3 has never been applied to this sort of case; and that Section 3,the Dover amendment applies pplies to agricultural exemptions, educational exemptions and religious exemptions. Attorney� p Kiefer read Section 3 which states: "No zoning ordinance orb law shall exempt pt land or structures from flood plain or wetlands regulations established pursuant to general law". # However, she stated,pre-existing,non-conforming use is not art of Section 3 of Chapter hapter oil 40A and has never been interpreted to apply to such use and does not apply to this pp y case.