02/22/2023 ZONING BOARD OF APPEALS Minutes

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MEETING MINUTES MASHPEE ZONING BOARD OF APPEALS FEBRUARY 22, 2023 Attorney Wall wanted to summarize his 10-page document. He said there are five arguments he wanted to discuss and the Board to consider. The first is what Attorney Kirrane referenced in his argument, that the bylaw has been invalidated. When someone files an appeal to Superior Court or Land Court, it's called a judicial review. The Court reviews the actions of the ZBA and issues a ruling. Only Town Meeting can enact bylaws or amend them. It's similar on the national level. The Supreme Court engages in judicial review, and as the laws are passed by Congress, and if a law does not pass, it goes back to Congress. The Supreme Court does not change the laws. At Town Meeting the Town is the legislative body. In a careful review of the judge's decision,it says that 174-17.1 is contrary to General Law Chapter 40A Section 6. The judge suggested to make it conform rather than compare the proposed structure with the previously existing structure. The judge said it should state; "compared to the neighborhood". A phrase needs to be inserted into the bylaw to make it conform to the State law and only Town Meeting can do this. Mr. Bonvie disagreed with Attorney Wall's comment. Mr. Bonvie said as a community does not have to conform to State Zoning Bylaws. The Town could have agreed to words in the bylaw, "it's not more detrimental excluding"the neighborhood"if the Town chose to. He asked Attorney Wall if he was correct in stating this. Attorney Wall said that the Zoning Act is an enabling act to allow the Town to adopt its own rules. The Zoning enabling act is a "floor", and in this particular case is protections from non- conformities. The case law says; "A municipality's bylaw may not afford fewer protections to pre- existing non-conforming structures than does the governing statute." Attorney Wall believe that Land Court mentioned that the bylaw says compared to the proposed with the previous existing structure that was not as protective as the state statue and therefore the Town needs to make it conform. This is why it needs to go back to Town Meeting. "Is contrary to MGL Chapter 40 Section 6", this is what the Court said. Attorney Wall believes that the phrase "to the neighborhood" needs to be added to the bylaw as well as other language if the Town has other language to add. Attorney Wall said that he agrees this is a hyper-intense legal agreement and tried to reach out to Town Counsel that he wanted to discuss this with the Board. Attorney Wall proceeded to the second argument; he said the lot coverage calculations on the revised plans are still incorrect. He has two points to make on this and one he did not mention in his letter/document to the Board. There has been discussions and argument made that there's a "new and an old way"regarding Land Subject To Coastal Storm Flowage (LSTCSF). He believes the Court was correcting this statement,and has to be excluded from lot coverage calculations, and considered under 174-33 setback issues. Mr. Bonvie said that as one member he would like to see the lot coverage calculations depicted on a plan with the wetlands calculations, and the old way as indicated in the bylaw. He would like to compare the percentages of the structure on the lot, so he can understand the project. The Zoning Bylaw has no reference to LSTCSF. 8