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 The Board noted that it should disregard the 2002 modification decision because issues relative to that modification are not now before the Board, and whatever happened in 2002 relates back to the opinion rendered by that Board. The focus of the Board in this proceeding is on the underlying bases of the Building Commissioner's December 2022 opinion and determination. Chairman Bonvie said that the Board must focus on the 1992 Decision, which he believes was an opinion, not a permit modification. The request of the applicant was for "an interpretation" and the 1992 Decision did not amend or alter the 1980 special permit modification decision that incorporated Condition #3. The applicant asked for an interpretation, and this Board has a right, under the doctrine of municipal estoppel,to reassess the legality and/or appropriateness of the past Board's interpretation of the "not to exceed 10 years" language. The Board acknowledged back in 1992 that the subject language was ambiguous, and it is now the prerogative of this Board to revisit the language and apply its own interpretation of these conditions. Upon request,there were no comments offered from those present in from the audience. In consideration of the above-referenced discussion, the Board's review and consideration of the written documents and letters in the record, and the statements offered .by the Building Commissioner and counsel for the applicant during the public hearing, the Board makes the following findings: 1) In 1973,the predecessor in interest to the Applicant,AJL LaCava Realty Trust,applied to the Board and was issued a special permit to allow a large-scale development on the subject property which would include a number of single-family and multi-family dwelling units and a golf course/clubhouse. 2) For various reasons, progress on construction of the residential component of the development was delayed and did not proceed as expeditiously as initially anticipated. 3) On March 14, 1980,the Board modified the Special Permit at the request of the then owner to allow for 232 single-family units and,notably, it incorporated ten new Conditions into the Special Permit. 4) Relevant to this proceeding, 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 43. If requirement can't be met the Permit can be considered in default. " 4