12/13/2023 ZONING BOARD OF APPEALS Minutes (2)

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MASHPEE ZONING BOARD OF APPEALS DECISION FOR A SPECIAL PERMIT Owner, Brendon P. Giblin 90 Popponesset Island Road, Map 106, Parcel 34 Mashpee, MA 02649 SP-2023-67 As shown on the site plan, the existing structure is non-conforming due to its location within the flood zone. Attorney Kirrane explained that the actual square footage is 20,421 ft. of upland area but for zoning purposes it has zero sq. ft. The lot coverage is non-conforming at 100% and the setback to wetlands is non-conforming at 0'. The existing structure meets the front yard setback, the rear yard setback, and both side yard setbacks. The Board knows that the minimum lot area in the R-3 Zoning District requires 40,000 sq. ft. and 150 ft., minimum frontage. This lot is entirely in the flood zone, and meets the minimum required frontage, but does not have the minimum lot area as defined by the §174-31 Zoning Bylaw. Attorney Kirrane stated for the record the reasons he believes the Board should approve this raze and replace project. He stated that the proposed new dwelling will be building code compliant, it will be flood zone compliant, it will be an improvement to the existing conditions as determined by DEP with substantial mitigation and restoration conditions. There will be storm water control that is currently non-existent on the lot,an I/A septic system already exists on the site,the proposed home is consistent with redevelopment in the neighborhood,and the overall coverage of structures is less than 20%. There are no new non-conformities being created, and there is sufficient parking with the proposed garage structure. The structure itself is nonconforming in only two aspects; lot coverage because of the flood zone, and setback to wetlands because of the impact of the flood zone.This project will be in compliance with all other setbacks. A septic I/A system is installed to comply with the Board of Health regulations. This project has been issued a Superseding Order of Conditions from the (DEP) Department of Environmental Protection stating this project is a better project than what currently exists on site. The Conservation Commission does not have any jurisdiction on this project, and there are no appeals on this project. The structure's existing coverage is 6.2%, and proposed is 15.4% and is still under the 20%requirement. Chairman Bonvie polled the members for questions/comments. The Board received the Conservation Commission's meeting minutes dated April 10, 2023 of the denial Order of Conditions for the record. After several meetings on this project, the Commission determined that the applicant did not provide sufficient information to demonstrate that the proposed activities in the velocity zone met the performance standards under Chapter 172, Regulation 25 (Land Subject to Coastal Storm Flowage). The Commission voted to deny the project without prejudice. The Commission failed to issue the Order within the mandatory 21-day time period following the close of the hearing. The applicant's attorney appealed to (DEP) Department of Environmental Protection on the basis of that failure to act. The 21-day deadline is obligatory and the failure to issue an Order within 21-days nullified the Commission's authority under its Bylaw even if the Order is issued on the 22nd day. Thus a Final Superseding Order was issued by DEP. The DEP SOC fully controls this project for all purposes of wetlands regulation, State and Local. 2