08/09/2023 ZONING BOARD OF APPEALS Minutes (2)

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MASHPEE ZONING BOARD OF APPEALS DECISION FOR REMAND/APPEAL OF BUILDING COMMISSIONER'S DECISION Owner,Anthony J. LaCava,Jr. Trustee of the AJL LaCava Realty Trust 234 Old Barnstable Road,Map 59 Parcel 5 Mashpee,MA 02649 AP-2023-13 During its deliberations, the Board specifically addressed and discussed, at length, the Board's previous 1992 interpretation of the Special Permit as well as subsequent Zoning Board of Appeal and Planning Board statements and actions which support,or appear to support,the contention that there is no completion deadline for developing and constructing single family lots within the subject development site. David Morris, Building Commissioner, confirmed his opinion, based upon his review of the modified Special Permit terms and conditions, that the Special Permit, as amended inl980, had lapsed and is now"considered in default".His determination was premised upon the language set forth in the March 1980 Special Permit extension Decision issued by this Board, specifically Conditions#3 and#10 therein. Condition#3 provides: "The project shall be phased at least over a five-year period, but not to exceed more than ten years. Not more than one hundred four(104) condominiums,but no less than fifty-two(52)condominiums in one year.Not more than forty-six (46) single-family houses in one year." Condition # 10 provides: "The Building Inspector shall keep track of the schedule referenced in Paragraph#3. If requirement can't be met the Permit can be considered in default." Commissioner Morris noted that,notwithstanding the Board's interpretation/construction of this language back in 1980, the Town is now in a significantly different position with respect to development build out and its bylaws have changed accordingly to address the different circumstances.He believes that under current zoning,the applicant would have the right to create 9-10 conforming lots at this site.The Commissioner's written determination states that construing this 1980 Permit amendment language by its plain and customary meaning, he believes that any phased construction of the project authorized by that Special Permit should have been completed within ten years of the Permit extension,i.e., by March 1990.It was unreasonable,in his opinion, for the property owner/applicant to propose the development of the number of proposed additional single-family homes pursuant to this Permit more than forty years after the extension thereof. Accordingly, he determined that the subject Special Permit had lapsed and, in accordance with Condition#10 therein,he considers the Permit to be "in default". Mr. Morris mentioned that he believes his determination serves the best interest of the Town. Board discussion on the Commissioner's opinion ensued. It was noted that pursuant to G.L. c. 40A, §9, special permits may be issued only for uses which are in harmony with the general purpose and intent of a zoning bylaw,and.they may impose conditions, safeguards and limitations on time or use. 2