04/24/2002 ZONING BOARD OF APPEALS Decisions

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Mashpee Zoning Board of Appeals Donald B. and Evelyn G. McIntyre V-02-58 property in 1999 and extension of that Variance in 2000, which extension subsequently expired. The ZBA granted Variance relief on the subject property again in 2001. i'!' Attorney Kirrane said that the Petitioner became unaware of a change in the status of the property located at 190 Waterway when a prospective buyer of the property discovered that the Building Commissioner had reversed his position and determined that the lot is unbuildable due to its merger with the property located at 184 Waterway. Attorney I E Kirrane said that both parcels were valid building lots when Mr. and Mrs. McIntyre purchased them over 40 years ago and remained that way until Mashpee revised its grandfathering clause in 1990. The Petitioner has paid approximately$35,000 in real estate taxes on the undeveloped lot at 190 Waterway. Attorney Kirrane said that the Petitioner is a part-time resident of Mashpee with a I principal residence in Wellesley. He stated that the Petitioner was not info rmed of the revisions to the Town's grandfathering provisions and failed to separate the ownership of I the lots located at 184 and 190 Waterway. Attorney Kirrane said that hardship exists and that the relief sought can be granted without detriment to the public good and without substantially derogating from the intent of the By-law. j Attorney Kirrane referred to the proposed construction, which would only encroach on the setback requirements to water and wetlands and, other than lot size, would conform to current zoning. Mr. Borgeson expressed appreciation for the hardship caused by the change in zoning and admitted that an inequity in the system exists. Mr. Govoni agreed and said that the Board has been trying toet the By-law changed g Yfor ears. Attorney Kirrane Board can y said that the an exercise its discretion and must weigh the benefits and disadvantages of each Petition on its own merit. Attorney Kirrane said that the individual homeowner does not I always understand changes in By-law. Mr. Govoni said that some of the people voted at I Town meeting to change the above-referenced By-law and did not even realize that the change would adversely affect them because they owned contiguously owned lots. Mr. Brem said that the Board should look at the 'legal aspect,pect, the moral aspect and the ethical aspect' of the situation. He said that the Board should use its discretion to render a fair and right decision. Mr. Brem said that the Town never notified the Petitioner of the change in status of the subject property, the Town continued to assess and tax the subject property as a separate and buildable lot and the Town continued to take the Petitioner's j money every year. He complained that if`there were two different names on the deeds' the Petitioner wouldn't be having this problem. Mr. Brem stated that he did not feel that I, r, the Board would be doing anything wrong by granting relief to allow for construction of I I a modest home on the subject property. Mr. Govoni reminded Mr. Brem about the f opinion from Town counsel. I j, Mrs. Gabrielle Clemens, an abutter at 196 Waterway, said that she is concerned with what will happen with the lot and expressed her opposition to the Petition. She said that I!i; the Board should respect the law and support the zoning requirements. Mr. Govoni read oi 2