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 AM LaCava Realty Trust 234 Old Barnstable Road,Map 59 Parcel 5 Mashpee,MA 02649 AP-2023-13 The Board noted that it would be highly unusual and contrary to its general practice to issue a special permit for a multi4ot residential development with no end date for completion of construction. It was noted that the subject Special Permit was issued in 1973,and on March 14, 1980 the Permit was modified to include,inter alia,Condition 43: "The project shall be phased at least over a five year period, but not to exceed more than ten years." The applicant returned to the Board for"an interpretation"of Conditions 3 and 10 of the modified Special Permit in October, 1992.The Board voted to waive the minimum unit development requirements of the decision and it"interpreted" the modified Permit to impose no completion deadline for the development of single-family lot or homes. It was noted that that this was just an opinion of the Board and not an actual modification of the Special Permit. Board members suggested that the proper procedural course for applicant at that time would have been to request a further modification of the Special Permit by the Board, rather than request its opinion or interpretation on the ramifications of the Conditions. Chairman Bonvie stated that the Board must address whether it believes the Board's 1992 interpretation of the Special Pen-nit conditions is correct or incorrect. It was noted by a member that there is no evidence now before the Board that would justify the position that there is no term limit to the development of the residential dwellings specified in the Special Permit. The plain meaning and construction of the language of Conditions #3 and #10 would lead to the reasonable conclusion that the subject Special Permit had a modified time limit of"not to exceed more than ten years"for completion of the project. Attorney Christopher Kirrane and Attorney Kate Carter spoke on behalf of the applicant.Attorney Kirrane stated that the Board's obligation is to determine whether the Special Permit has lapsed or not lapsed. Whether or not the applicant is now allowed to build 29 lots or 10 lots is not the reason for this discussion. He noted that would require approval from the Planning Board. Attorney Kirrane mentioned the Court's remand order states under"Count I", under Chapter 40A Section 17, it appears that the Trustee is entitled to some of the relief he seeks mainly that the Board's Decision upholding the Building Commissioner's Determination that the Special Permit has lapsed is untenable,unreasonable,whimsical,capricious and arbitrary for failing to take into account the Board's 1992 interpretation of the Special Permit. Attorney Kirrane stated that there was a modification in 2002, and believes that the Board ignored that,and reiterated that the permit had not lapsed. The Board duly notes that the language referenced was contained in the Land Court's May 31,2023 Order,not the Remand Order of June 23,2023.It believes that the Court's comment in the May 31, 2023 Order must be construed within the context of the default that had entered against the Board at that time, rather than in the context of the substantive permit construction issue now before the Board. 3