05/11/2022 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES MAY 11, 2022 28 Jeep Place: Petitioner, Jamie and Paul Saganey request a Minor Modification of an approved Special Permit (SP-2019-53) and Variance (V-2019-54) under the Zoning Bylaws to eliminate the prohibition of finishing the space above the detached garage on property located in the Popponesset Overlay, and R-3 Zoning District,Map 118 Parcel 108, Mashpee, MA. (Owner of Record: Daniel J. Saganey, Trustee of the Poppy Realty Trust). Sitting on this hearing are the four regular board members and Associate Member, Brad Pittsley. Attorney Christopher Kirrane represented the homeowners for a modification to the approved Special Permit and Variance that was granted back in 2019. Specifically he is asking the Board to modify the condition number (No. 6) of the Special Permit and Variance which prohibits the space above the garage from being finished, with plumbing and heating. In 2019,there was a prohibition of finished spaces or an accessory apartments in an attached dwelling. The bylaw has since changed, and now allows an accessory apartment in an attached structure and would only require a building permit, and would not require a filing with the ZBA. He thought the reason that this condition may have been issued could be because accessory apartments were specifically prohibited without zoning approval,but is now allowed, and this modification can be approved by this Board. Attorney Kirrane said he received the letter that was submitted to the Board from Attorney Wall representing the abutters. The Board supported the raze and replace project despite any objections by the neighbors. He addressed the issue mentioned in Attorney Wall's letter that there is nothing in the bylaw that allows living space above a garage or an attached accessory structure, and per the bylaw that is not true, and it is now allowed. The other issue that was mentioned that he disagreed with is that the Board does not have the authority to make a modification. Attorney Kirrane mentioned that Attorney Wall sited a case from 1978 and was missing part of the quote. "The Board has the inherent power without holding a further public hearing to correct an inadvertent or clerical error in its decision so that the record reflects its true intention as long as the correction does not constitute a reversal of a conscious decision, does not grant relief different from that originally sought, and does not change the result of the original decision". The part of the quote that was not included in Attorney Wall's letter is that "the Board has the inherent power without holding a public hearing". This is a public hearing, and the Board is well within its authority to give this modification. Attorney Kirrane also noted that the septic system allows for four bedrooms, and there is nothing that would derogate from removing this condition for the purposes of the bylaw, as far as nuisance, health, safety, and traffic. Chairman Furbush questioned if a lot requires 10,000 sq. ft. for every bedroom. 3