08/25/1999 ZONING BOARD OF APPEALS Decisions

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William Hauck April 23, 1999 Page 2 Under Mashpee Zoning, §174-17, nonconforming single family dwelling structures may be changed, extended or altered if the proposed change, extension or alteration complies with the zoning requirements "as were applicable to initial construction of the dwelling." At the time the existing single-family dwelling was constructed, these setback (front yard and zoning wetland) and lot coverage requirements were not in place. We therefore request that your office issue a building permit for the construction of this minimal garage as it presently satisfies all applicable provisions under Mashpee Zoning. Alternatively, we request that your office specifically identify which of these requirements, if any, would preclude the issuance of a building permit. As discussed, the proposed garage structure does not meet present zoning in three respects. First, the proposed garage structure is, at certain points, within 20 feet of the front lot line. Under present-day §174-31, structures are to be set back 40 feet from the front lot line. However, when compared to front yard setbacks in effect when the lot was created (none), the proposed 20 foot front yard setback is in compliance with §174-17. Second, when the garage and dwelling area are combined, approximately 21% of the lot is covered. The existing zoning requirement at §174-31 allows for a 20% maximum lot coverage. Again, however, no lot coverage requirement exists under Mashpee Zoning when the lot was initially created in 1963 and therefore is an allowable expansion under the provisions of §174-17. Furthermore, the minor increase of 1% above the current lot coverage requirements is, in any event, de minimis, even assuming the lot coverage requirement was even applicable to this lot, which it not. Based upon our prior conversation, it appears that we are in agreement that the current front yard setback and the maximum lot coverage zoning standards are inapplicable to the Property per §174-21 of Mashpee and §6 of the Zoning Act. Accordingly, the area of disagreement between our interpretations of Mashpee Zoning to the project is limited to the water and wetlands setback provision of Mashpee Zoning, §174-33. The proposed garage is to be located, at one corner, approximately 9.1 feet from the edge of the coastal bank. Article VII of Mashpee Zoning (Land Space Requirements), §174-33 creates a 50 foot setback from water and wetlands. Although the setback of the proposed garage does not comply with the current 50 foot setback requirement of §174-33, this setback likewise was not in place at the time the Litvack lot was created. Similar to front yard setback requirements, the zoning wetlands setback at §174-33 is solely a dimensional setback requirement from which the grandfathered Property is excused from compliance with current standards. In accordance with §174-17, the location of the single-car garage "complies with such requirements as were applicable to initial construction of the dwelling." Fasanella, Johnson & Wood P.C. �)p,meea on acrciee oaoe