09/25/2024 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES SEPTEMBER 25, 2024 29 Riverside Road: Petitioners/Owners, Russell J. and Anne E. Spencer are appealing the Building Commissioner's Decision under M.G.L. §§8 & 15 denying to issue a building permit for a garage or accessory apartment that the existing onsite cottages constitute accessory apartments, and is not allowed under 780 CMR 51:00,Massachusetts State Building Code.Petitioners/Owners seek a determination that the proposed Accessory Apartment is allowed under §174-45.4 on property located in an R-3 Zoning District, Map 119, Parcel 81, Mashpee, MA. Attorney Christopher Kirrane represented the homeowners for 29 Riverside Road. The homeowners were also present. The Board approved a raze and replace project for this property, and granted a Special Permit. The project involved a single-family dwelling, and replace it with a new single-family dwelling as well as garage, with living space above the garage which will be permitted as an accessory apartment. The reason for this accessory apartment is to accommodate the parents of the homeowners. Attorney Kirrane and his client are appealing the Building Commissioner's decision to deny the homeowners a building permit for their request of an additional accessory dwelling unit. There are currently other structures on this property that Mr. Morris's considers accessory dwelling units, and by adding an additional accessory dwelling unit is not allowed. Attorney Kirrane stated that the appeal is based upon the Accessory Apartment bylaw under§174- 45.4 that one accessory apartment is allowed as of right. The project was approved by the Board of Health with the installation of a new IA system that will accommodate at least ten (10) bedrooms, and meets the requirements for wastewater treatment for unit size. He stated that his clients will be living on the property which is a requirement. There is plenty of parking as stated under the bylaw, and the property has an existing driveway that does not require an additional curb cut. Attorney Kirrane said that his position is that there are no other accessory apartments on this property. The existing accessory structures do not have the same exterior design, and they cannot meet the spirit or intent of the bylaw. The existing accessory structures do not have heat or insulation, and could not be habitable during the winter months, and therefore cannot be habitable year round. This description goes against the spirit and intent of the bylaw. Attorney Kirrane noted that the State just passed new legislation making accessory apartments less restrictive as far as living barriers, zoning barriers, and building barriers. There should be no building or zoning impairments. These existing buildings do not have heat for insulation and are not habitable year round. His clients do not rent these accessory structures and are only used during the summer. Attorney Kirrane stated that the accessory apartment over the garage meets the requirements of an Accessory Dwelling Unit under the bylaw. There are four existing dwelling units on this property that are not allowed and are considered pre- existing nonconforming. Mr. Morris believes that these structure units are used for human habitation, and the homeowners are intensifying the existing condition of the property, and it is not allowed under the bylaws. 9