08/25/1999 ZONING BOARD OF APPEALS Decisions

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11/10/1999 13:06 6177204449 LAW OFFICES PAGE 06 Zoning Board of Appeals July 30, 1999 Page 3 A. The Building Inspector's Denial Fails to Address the Property's Grandfathered Status under Zoning. As discussed in our April 23, 1999 correspondence, the lot at issue was created by a�2asubdivision of land and is a pre-existing, nonconforming lot, as permitted under the Mashpee Zoning Bylaw ("Zoning Bylaw"). The Zoning Bylaw was originally approved at Special Town Meeting held on May 7, 1979. If compared with present-day zoning, the proposed garage structure would not comply with (1) the front-yard setback requirement, (2) the 20% lot coverage limit, and (3) the zoning wetlands 50 foot setback, assuming this particular provision is even applicable to the garage project, The garage structure will be located 20 feet from the front yard line, total lot coverage would be 21%, and a rear corner of the garage would be located 9.1 feet from coastal bank. However, §174-17 of the Zoning Bylaw provides that 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 Applicant's single-family dwelling was constructed, these setback (front yard and zoning wetland) and lot coverage requirements were not in place. Therefore, the garage, as proposed, would not be in conflict with the Zoning Bylaw as it retains a "grandfathered status" and a building permit should have been issued by the Building Inspector. The Building Inspector's correspondence denying the Applicant's building permit application completely fails to address the issue of the Property's grandfathered status under the 1963 Zoning Bylaw and the present §174-17 with respect to the three major issues (the front-yard setback, the lot coverage, and the zoning wetlands 50 foot setback provision). He entirely fails to explain why the present day Zoning Bylaw is applicable to the Property in question. In fact, the Building Inspector's correspondence, for unknown reasons, further fails to mention, let alone address, the front yard setback issue and the lot coverage issue. In our April 23, 1999 correspondence, which accompanied the Applicant's building permit application, we specifically requested that [i]n the event that you [the Building Inspector] disagree that the pre- existing lot is not grandfathered from any one of more the above-noted nonconformities, we ask that in a response letter you specifically identify which setback provision or coverage requirement impedes the issuance of the requested building permit . . . . See, correspondence from Fasanella, Johnson, & Wood, to Building Inspector, at 3, attached hereto as Exhibit 3. Fasanella, Johnson & Wood P.C.