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

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MASHPEE ZONING BOARD OF APPEALS DECISION FOR WITHDRAWAL OF A VARIANCE Owners, Brian J. Kelleher and Karen F. Kelleher 37 Nick Trail, Map 117, Parcel 300 Mashpee, MA 02649 V-2023-68 Attorney Kirrane submitted a letter to the Board dated December 8,2023, and summarized stating that his client was not aware that these lots became non-conforming, and were merged for zoning purposes. The Board of Health submitted comments that the stated; "Lot 5 Map 117 parcel 301 will be 6,000 sq.ft. making it unbuildable without nitrogen credit land of at least 4,00 sq.ft.for I bedroom. " Attorney Kirrane stated that his client can apply for nitrogen credit for this lot, and this is not an obstacle from making this lot buildable. Attorney Kirrane also mentioned that his client was never notified of the zoning change. The Board of Health comments dated January 22, 2024 were read into the record. The Conservation Department comments dated January 23, 2024 were read into the record, "Property lies within the FEMA mapped Velocity Zone and is thus subject to wetlands jurisdiction under Mashpee's Ch. 172 Wetland Bylaw. As this application does not propose any actual alterations of the subject lot, it does not fall under Concom purview. " The Board read the Town Planner's comments dated December 6, 2023 into the record." The applicant is requested variance relieffor the minimum required lot area because the subject lot is located totally within the flood zone and thus has no usable land area. My comments will be limited here because the nature of this request is completely and totally unsupported by the Massachusetts General Laws and Mashpee Zoning Bylaw. When adjacent lots that are nonconforming are held in common ownership, they merge for the purposes of zoning and once merged they cannot be "unmerged. " Granting of relief in this case, in my opinion, would derogate from the purpose and intent of the bylaws. Further, there is no demonstrable unique shape, soil condition, or topographical condition necessitating the relief. This appears to be a self-imposed hardship that the applicant is now seeking relief from. It should be rejected. Recommendation:I recommend the Board deny the requested variance relief on the basis that there is no unique lot shape, soil condition or topography that is constituting a hardship to the applicant." Attorney Kirrane did not agree with the Town Planner's comments that this is a self-imposed hardship. Attorney Kirrane stated that back in 1950,the land court deed stated that there were two separate lots. One lot is 6,000 sq. ft., and the other lot has 6,500 sq. ft. The Board is aware of the Zoning Bylaw Section 174-31, footnote 12, a land court decision considers that a vacant lot is unbuildable that has zero square footage being totally in a flood zone. Chairman Bonvie asked for Board member comments. Ms. Sangeleer believes that the lot could become more non-conforming if the lots were unmerged. 2