1988-1990-ZBA APPEALS (2) - Laserfiche WebLink

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E • • • Mashpee Board of Appeals Minutes - August 23, 1989 Page 2. The Board reviewed maps of the area to determine the location of the Zuckerman lot in.relation to the Silver lot. Mr. Makunas asked if there were any other docks in the neighborhood. Mrs. Zuckerman replied that the Depietri house next to her had a dock. Mr. Hanrahan asked if Mrs. Zuckerman had a dock and she answered that her home had a dock when she purchased it. Mr. Makunas asked if Mrs. Zuckerman could see the house or the waterfront of the Silver home. She said that she could not but wanted the area protected. George Darcy, a resident of the neighborhood, questioned the location of the Silver lot and stated he had no comment on the application. Paul Somerville, Shellfish Constable, presented the Board with a memo from F. Thomas Fudala, Town Planner. Mr. Somerville explained that Mr. Fudala had written the memo after consultation with Assistant Town Counsel, Leslie Morse. The memo stated that the Board of Appeals does not have the authority under the Zoning By-laws to grant a permit for a dock longer than 70'. Mr. Fudala expressed the opinion that this was not a dimensional requirement as contained in Section 7 of the Zoning By-laws but that it was a specific use. He wrote that the by-law was written as it was with the specific intent of prohibiting the issuance of any permits for longer docks by the Board of Appeals. Mr. Dubin responded that he would like the opportunity to research this information. He said he would dispute the statement that the by-law was written with the specific intent of prohibiting the issuance of any permits for longer docks by the Board of Appeals. He reported that he was a member of the Planning Board when the by-law was adopted and that there was no intent to create a by-law that could not be varied. He said that the critical question is whether case law substantiates this position. Mr. Hanrahan stated that under the broad scope of Chapter 40A any Board of Appeals has the authority to grant a variance on any dimension in the by-laws. He questioned if Mr. Fudala's memo was in conflict with state statutes. Mr. Dubin recalled that there was an attempt to put language into the by-law that said no variances could be granted and this was omitted in the final draft of the by-law after discussion among members of the Planning Board. Mr. Hanrahan commented that this interpretation would indicate that if the length of the dock was over 70' or under 70' it is an entirely different use. He suggested that if the interpretation of Mr. Fudala's memo was taken literally there would automatically be a different use because of the over-all length of the dock. Paul Somerville, Shellfish Constable, presented the Board with written objections from the Mashpee Shellfish Commission and read the comments to the Board. The memo stated that the applicant had not submitted sufficient information as to the existing resources at the site and the possible environmental impact. The memo stated that the Shellfish Commission is opposed to the granting of a Variance.