04/09/2014 ZONING BOARD OF APPEALS Decision

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MASHPEE ZONING BOARD OF APPEALS DECISION WITHDRAWAL OF MODIFICATIONS TO SPECIAL PERMIT SP-86-04-024 Mashpee Commons Limited Partnership 38 Nathan Ellis Highway, Unit 33 (Map 74 Parcel 20) Mashpee, MA 02649 SP-2014-19 Attorney, Mike Ford commented that in order to be entitled to a variance on this corner, they need to show some unique conditions relating to soil, typography, or shape under 40A Section 10. There may be a shape argument creating a hardship that you could rely on if you literally apply the bylaw. If assuming a shape issue is at an intersection with parking on both sides, and literally applying the required 40 feet setback, it results in the loss of 15-18 parking spaces.The building has a bump-out and as it moves back,it not only displaces more spaces that run parallel to Steeple Street, but the next row of spaces are displaced as well. Tom indicated on paper, that Mashpee Commons still has an excess of 63 spaces over and above what is required under the bylaw, including back in 1986 that was authorized on a plan. There are times at Mashpee Commons there does not appear to be enough spaces, particularly in key areas and in key parking lots. The 1986 special permit indicates the 40 foot setback as long as they continue to exercise the zoning rights under the special permit. In addition to the 1986 special permit, there are two very important conditions that give you control. Condition numbers 1 and 5,which require Design/Review and the ZBA for special permit modifications in order to proceed and allow conceptual phase plans. However, the variance is an integral part of this project because without the variance the building cannot be situated in the location they are seeking with the special permit. Mr. Ford stated in regard to setting a precedence, Mashpee Commons has a unique condition of the 40 foot setback requirement for a variance. These unique circumstances include the locational parking,the number of spaces that were displaced,what the use will be, and what is being achieved at the intersection in terms of tightening up the building. Mr. Ford said he understands that Mashpee Commons is not entitled to variances, and he respects the Boards decisions. However, from a design stand-point, there are conditions that could be applied and achieved tightening up those intersections, and the calming effects of traffic at the intersections,and the benefits for pedestrian movement across Route 28. Mr. Ford said the question whether or not management has exhausted all the places for a utility shed may or may not be material to the criteria before this Board to grant. The variance relief is entirely discretionary. 5