TOWN OF HARWICH
BOARD OF APPEALS
MINUTES
Wednesday, February 27, 2008, 7:00pm
Donn B. Griffin Room
MEMBERS PRESENT: Richard Flink, Jack Brown, George Cavanaugh, Dean Hederstedt, Geoff Wiegman, Murray Johnson
MEMBERS ABSENT (EXCUSED):
MEMBERS ABSENT (UNEXCUSED):
STAFF PRESENT: Susan M. Leven, AICP, Town Planner, Kathleen Girouard, Recorder
MEETING CALLED TO ORDER: 7:00 PM
On Wednesday, February 27, 2008, the Harwich Board of Appeals will hold a public hearing at the Harwich Town Hall, Donn B.Griffin Room, Harwich, MA 02645 at 7:00 PM to hear the appeals of the following:
Continued Cases
#08-04: ~The petition of Richard A. Weiler, Jr. ~The petitioner, who is the owner of the property at 527 Long Pond Drive as shown on Assessor’s Map #111, Parcel A-2 in the RR and Water Resource Protection zoning districts, East Harwich, seeks a Special Permit to construct 2 additions to a pre-existing, non-conforming use (dental office) and a Variance to exceed the maximum site coverage.
TIME OPEN: 7:00 PM
REPRESENTING APPLICANT: Mr. Flink read the notice into the record. Attorney Cahoon and Doctor Weiler presenting, Attorney Cahoon presented a letter to Ms. Leven requesting the removal of Dr. Johnson from the case claiming an appearance of conflict. Mr. Flink reported that he discussed the matter with Dr. Johnson there did not appear to be a conflict and removal was not appropriate. Attorney Cahoon explained that Dr. Weiler has long envisioned expanding dental services to the Lower Cape by adding related specialist to complement his services. He was granted permission 1 ½ years ago and distributed a copy of the decision to the Board. It was noted that all but Mr. Wiegman were on the Board when the decision was made. Stated Dr. Weiler had a heart attack and the plans didn’t move forward at the time. Attorney Cahoon maintained the plans were not modified except to meet suggestions from the Planning Board and they were unanimously approved. Attorney Cahoon stated the expansion
of the structure is not more detrimental to the neighborhood, will not cause congestion and will be the same pre-existing non-conforming use with 54% site coverage and compatible with the Fontaine Medical Center. Mr. Clark of Clark Engineering explained the site plan has evolved, the parking count conforms to the by-law but upon further investigation the 2 designated handicap spaces did not meet the by-law criteria. They deferred to the State requirements and didn’t realize all spaces needed to be van accessible. Upon request from the Board they were amenable to adding a third ADA compliant parking space but were asking for relief of the loading zone requirement. The only delivery trucks servicing the business are UPS, but can add one if needed. Attorney Cahoon presented a letter from the Building Inspector and Town Planner showing the buffer zones were compliant and more screening and plantings can be done if necessary. Mr. Flink
asked if the petition was approved why were they here and Attorney Cahoon explained they did not pull the permit before the variance expired. Mr. Larsen read a memo dated 2/26/08 into the record about the permitting process. Ms. Leven stated that based on the granting of a previous variance for the use, the original permit for the use should have been a variance not a special permit.
PUBLIC COMMENT: Mr. Hal of 221 Long Pond Drive felt it would not be detrimental to the neighborhood and said a dentist is a dentist and felt there was a conflict having Dr. Johnson on the Board.
Mr. Shrake read a letter dated February 22, 2008, into to record in opposition of the proposed project citing parking concerns, safety hazards, increased non-conforming use that is detrimental to the neighborhood. He referred to the inconsistencies to the goals in the Local Comprehensive Plan and the Cape Cod Commission design guidelines. He suggested seeking alternative locations that would not expand non-conforming use.
Mr. Hederstedt visited the offices and witnessed cars double parked in spaces for 1 car and was concerned that additional parking spaces weren’t added for the additional offices when there doesn’t appear to be enough spaces to handle the load now. Mr. Larsen responded the plans were short 6 spaces. Dr. Weiler explained the double parking was a matter of convenience for someone who has difficulties walking. He mentioned that he has had to put up signs to stop people from parking on his lot for the medical center and mentioned the bus that parks on the corner. Mr. Wiegman disclosed he is not voting on this matter and stated his concern with the proposed parking on the hill and lack of visibility of vehicles exiting from the entrance. Mr. Brown questioned the site coverage and parking
requirements. The Board discussed options for correcting the permit that was granted 1½ ago when the proposed did not meet any requirements for a special permit and should have been a variance. Mr. Flink suggested continuing for the purpose of drafting a motion for Town Counsel review by the next meeting and having the applicant file for a variance and waiving the fees.
VOTE – Mr. Brown motioned to continue to March 26 meeting and added the fees would be waived for the filing. Mr. Cavanaugh seconded, unanimous vote in favor.
#08-08: The petition of the Thomas and Patricia Kennedy, represented by John P. McCormick, Esq. ~The petitioners, who are the owners of the property at 1684 Orleans Road, as shown on Assessor’s Map #113, Parcels W1-2 and W1-A in the RR zoning district, East Harwich, seek a review of the decision of the Building Commissioner to issue a violation stating that the current use of a structure does not conform to zoning and previously issued permits.
TIME OPEN: 7:48pm
DISCUSSION/CONSIDERATIONS: Mr. Flink read the notice into the record, Mr. Brown recused himself for personal reasons. Letter dated November 19, 2007 was read along with determination dated June 25, 2005 for a special permit to construct a storage building noting a specific use was not in the permit granted. Mr. McCormick gave a history of the property which included an oil company, cranberry bog, and since the Kennedy’s bought the property in August 30, 2001, the shed has been used to store files, boxes, vehicle, and lawnmowers for Back Office Associates. He maintained they were not in violation and cited Chapter 40A Section 7. Mr. Larsen, the Building Commissioner, stated the submittal was an alteration of the original permit based on denial issued in 2002 which was limited to oil and
cranberry farming equipment. Read memo dated February 25, 2008, noting case number BOA 2002-64 which was denied. Ms. Leven noted they did not have approval for outside storage and they have a backhoe, construction equipment, and landscaping truck and a garage is required. Mr. Wiegman asked if the 2002 request was denied is the special permit still in place? Mr. Larsen responded for cranberry and oil trucks but current use is a violation of use under MA general law based on the pre-existing non-conforming use crosses the threshold which requires the Board of Appeals to review. Mr. Larsen had received complaints regarding the perceived construction activity taking place in the yard and read letter dated November 19, 2007 addressing the metal storage building.
PUBLIC COMMENT: Mr. Bernstein, next door neighbor, explained the special permit speaks specifically to the oil truck storage for the Walker’s and doesn’t say for storage in general. He stated it was a stretch to assume storage was allowed and asked why in 2002 was a permit for storage requested and denied. Ms. Leven read the Planning Board’s suggestion to overturn the Building Commissioner finding. Mr. Hederstedt asked what the options were and they were to uphold the Building Commissioner’s decision or overturn. Dr. Johnson responded that if the decision was upheld, the building would lay fallow until the owners came forward with another use or found a way to make it usable. Mr. Cavanaugh stated the complaints were not necessarily with the building but
what is going in and out of the building and the property. It appears they are running a business out of the storage building which is not permitted. He suggested the real issue may be using for commercial use in a residential zone.
Ms. Leven explained that Mr. Klink owns a landscaping company and bought the house on the adjacent property and has been storing his business equipment there which needs to be addressed. The Kennedy’s sold the main building and accessory building to Mr. Klink and kept the storage building. Mr. Klink’s use of the property is not an issue and abutter agreed.
TIME CLOSED: 8:22pm
VOTE – Mr. Wiegman motioned to overturn the Building Commissioner’s decision and to revert the allowed use back to the original decision 1985 (85-34) to allow use as a storage building without regards to any storage theme. Mr. Hederstedt seconded, unanimous vote in favor.
#08-12: ~The petition of Bruce and Jan Soderholm. ~The petitioners, who are the owners of the property at 27 Seventh Street, as shown on Assessor’s Map #101, Parcel X3 in the RL zoning district, Pleasant Lake, seek a special permit to construct an addition to a pre-existing, non-conforming dwelling that increases the non-conforming nature of the structure but does not create a new non-conformance.
TIME OPEN: 8:25PM
DISCUSSION/CONSIDERATIONS: Ms. Leven read Mr. Wilkinson’s request to withdraw without prejudice into the record.
VOTE – Mr. Hederstedt motioned to approve the withdrawal without prejudice, Mr. Cavanaugh seconded, unanimous vote in favor.
TIME CLOSED: 8:26 PM
#08-13: ~The petition of the Harwich Taxpayers’ Association. ~The petitioner, who is the president of the organization, seeks a review of the decision of the Building Commissioner to issue a violation for temporary signs displayed on public property without the permission of the Board of Selectmen and for displaying temporary signs without filing proper notification with the Building Commissioner.
Mr. Wiegman leaves the table.
TIME OPEN: 8:26 PM
DISCUSSION/CONSIDERATIONS: Letter from Attorney James Stinson, the applicant’s representative, requesting a continuance to the March 26, 2008 meeting.
VOTE – Dr. Johnson motioned to continue to the March 26, 2008 meeting, Mr. Cavanaugh seconded, unanimous vote in favor.
#08-14: ~The petition of Ed Madden. ~The petitioner, who is the owner of the property at 18 Victory Drive, as shown on Assessor’s Map #12, Parcel T4-23 in the RH1 zoning district, Harwich Port, seeks a special permit to construct additions to a pre-existing, non-conforming dwelling that increases the non-conforming nature of the structure but does not create a new non-conformance.~~~~~~~~~~~~
TIME OPENED: 8:27 PM
DISCUSSION/CONSIDERATIONS: Tom Moore and Gary Langille presented ideas for demolishing the existing sun porch and reconstructing a slightly larger room to accommodate relocating the existing bedrooms, creating a master bathroom and fit a laundry room. Coverage would increase from 9.5% to 12.7% (400sf) and would not be detrimental to the neighborhood.
PUBLIC COMMENT: No comments.
TIME CLOSED: 8:30PM
VOTE – Mr. Wiegman motioned to approve the Special Permit to construct additions to a pre-existing, non-conforming dwelling that increases the non-conforming nature of the structure but does not create a new non-conformance. Mr. Brown seconded, unanimous vote in favor.
#08-15: ~The petition of Michael and Carolyn Kemp, represented by James B. Stinson, Esq. ~The petitioners, who are the owners of the property at 18 Catherine Rose Road, as shown on Assessor’s Map #100, Parcel X2, in the RR zoning district, Pleasant Lake, seek a variance or in the alternative a special permit to construct a deck/walkway that encroaches on the northerly sideline setback.
TIME OPENED: 8:31 PM
DISCUSSION/CONSIDERATIONS: Mr. Flink read notice into the record. Attorney Stinson and Mr. Kemp present to present case to add a deck walkway from the house not more than 4 feet in height but the slope causes a section to be over the 4 feet and encroaches on the set back. The Engineer filed the building and site plans showing a close up of the section that requires relief which comprises of 10SF out of compliance. If the land wasn’t sloped, relief would not be needed.
PUBLIC COMMENTS: None. The Planning Board comments were read into the record included that no hardship was demonstrated under MGL Chapter 40A Section 10. Attorney Stinson responded that was the house is only 16 feet wide with an existing door and step and they are trying to comply with conservation. The have begun to clean up the back yard and would like to continue the walkway which will benefit neighbors and make it a safer home.
TIME CLOSED: 8:40 pm
VOTE – Mr. Wiegman motioned to grant a special permit to construct a deck/walkway that encroaches on the northerly sideline setback. Dr. Johnson seconded, unanimous vote in favor.
#08-16: ~The petition of Gavin Archibald, represented by James B. Stinson, Esq. ~The petitioner, who is the owner of the property at 8 Atlantic Avenue, as shown on Assessor’s Map #6B, Parcel L137 in the RH2 zoning district, Harwich Port, seeks a special permit to construct a second floor addition to a pre-existing, non-conforming dwelling that increases the non-conforming nature of the structure but does not create a new non-conformance.
TIME OPEN: 8:41 PM
DISCUSSION/CONSIDERATIONS: Mr. Flink read the notice into the record. Attorney Stinson representing applicant. The property is in the Campgrounds. It is located on 8 Atlantic Ave and the lot is 1,600 SF (40’ by 40’) lot laid out in the 1920’s almost on the town parking lot. Mr. Archibald inherited a two bedroom dwelling that is used for vacation rental purposes. He has considered moving here from New Hampshire. In 1993, there was a failed septic and they have been to the Board of Health. They do not want to increase the number of bedrooms but add an 18’ by 11’ foot addition that will not increase the site or building coverage. Add a second floor balcony that doesn’t extend over the front perimeter and is set
back from the roof line. They want to relocate the stairway adding 220 square feet and create a master bathroom. The septic system has the capacity to handle the flow and is not detrimental to the existing non-conformity.
PUBLIC COMMENTS: None. The Town Planner and Planning Board had no comments and no correspondence was received.
Mr. Hederstedt asked if the façade would be maintained and the response was yes.
TIME CLOSED: 8:45 PM
VOTE – Mr. Wiegman motioned to approve the special permit to construct a second floor addition to a pre-existing, non-conforming dwelling that increases the non-conforming nature of the structure but does not create a new non-conformance. Mr. Brown seconded, unanimous in favor.
#08-17: ~The petition of Thomas Dolan, Trustee of Thomas M. Dolan 2000 Trust, and Brian F. and Elizabeth Michael Dolan, represented by William D. Crowell, Esq. ~The petitioners, who are the owners of the property at 9 Cottage Avenue, as shown on Assessor’s Map #6, Parcel G2-2 in the RH1 zoning district, Harwich Port, seek a special permit to raise/lift a structure more than 8 inches. ~The applicant proposes to raise/lift the structure 4.5 feet.
TIME OPEN: 8:47 PM
DISCUSSION/CONSIDERATIONS: Mr. Flink read the notice into the record. Attorney Crowell and Mr. Dolan reported they received approval from the Board of Health to renovate and expand the single family house. They do not require relief for set backs but under the Building Commissioner’s policy for lifting dwellings they need a special permit. Pictures were distributed to the Board to explain the topography of the site and the drainage issue that causes water to flow into the basement and garage. They plan to lift no more than 4 ½ feet and can’t exceed 30 feet in total height. There are no known view easements and the immediate abutter indicated it wouldn’t be a problem lifting the 4 ½ feet. Site plans were presented to the Board. The applicant
was asked if the lifting would rectify the drainage issue and they stated that they tried to address and had to raise higher to accommodate the deck.
PUBLIC COMMENTS: None. Town Planner had no comments. Comments from the Planning Board were read into the record which stated that they wanted to be sure that 4½ feet is the minimum that is needed to address drainage issues. No other correspondence.
TIME CLOSED: 8:57 PM
VOTE – Mr. Wiegman motioned to grant a special permit to raise/lift a structure not more than 4 ½ feet, Mr. Brown seconded, unanimous vote in favor.
#07-11: ~Sarah Capaccioli and Charles Basil, represented by William Hammatt, Esq. ~The petitioners, who are the owners of the property at 1066 and 1070 Queen Anne Road as shown on Assessor’s Map #75, Parcels N3-2 and N2 in the RR zoning district, East Harwich, seek a one year extension of a variance granted on February 28, 2007 and filed on March 14, 2007 to do an equal land swap that would result in the creation of a setback encroachment for one of the dwellings.
TIME OPEN: Taken out of order at 8:58 PM.
VOTE: Mr. Brown motioned to grant a 6 month extension to August 27, 2008, Mr. Cavanaugh seconded, unanimous vote in favor.
#08-19: ~The petition of Habitat for Humanity of Cape Cod, represented by Warren Brodie, Esq. ~The petitioner, who is the lessee of the property at 0 Driftwood Lane as shown on Assessor's Map 53, Parcel G301, in the RR zoning district, East Harwich, seeks a comprehensive permit under MGL Chapter 40B Sections 20-23 and 760 CMR 30.00 and 31.00 to develop 13 condominium units of housing as single family and duplex dwellings.
TIME OPEN: 8:58 PM
DISCUSSION/CONSIDERATIONS: Mr. Flink read the notice into the record and disclosed Mr. Brown has filed with the Ethics Commission disclosing he is the Chairman of the Community Preservation Act in Harwich and voted to recommend the granting of funds for the project. Attorney Brody, Vicki Goldsmith, and Don Dickinson presenting. Gave history of their goals to end homelessness and the number of units constructed and underway on the Cape. They are a non-profit agency seeking to construct a neighborhood of 13 homes on town-owned land. They have control of the site and presented the lease as exhibit B in the application which has been recorded at the Barnstable County Registry of Deeds. This project will help the Town reach its goal of 10% affordable housing. The RFP was issued
by the Town; Habitat for Humanity was awarded the contract, $325,000 from the Affordable Housing Special Revenue Fund, $90,000 of Community Preservation funds and has applied for Barnstable County HOME funds. Proposing 13 various types of housing units, eight (8) of which will be constructed by Habitat and made available to those at or below 65% area median income. The other five (5) will be developed by contractors and retained by Habitat for households at or below 80% of the area median income. All units will be deeded in perpetuity to remain affordable and will be countable for the Town’s goals. Units will be condominiums with each unit having an exclusive use area outside above the common areas. The Condo Trust Gomes Way Leasehold Condo Trust will be responsible for the common areas and will assess and collect dues. Property is in East Harwich RR zone on a 40,000 square foot lot. Size requirements are 30,000 square feet per unit,
40,000 square feet should be 9 ½ units and they are proposing an additional 3 ½ units with 13 above what they can do by right. There will be a 50 foot green buffer around the perimeter of the entire lot and will retain as many trees as possible. It is located in a zone 2 water resource protection district. The applicant pointed out a clerical error in Exhibit L and Habitat is not seeking relief for underground utilities. They have met with various boards in an effort to expedite the permitting process and are seeking prompt action as they won’t start the family selection process without a building permit and can’t start construction until after that. Mr. Cavanaugh questioned the number of bedrooms that did not match up to the units in Exhibit A and Mr. Dickinson explained paragraph 3 of the last page was in error and should read six 3 bedroom units. Mr. Dickinson presented the site plan to the Board explaining that a lot of
thought went into the plans to be good neighbors and address both affordable housing and the need for open space. He pointed out the access road off of Driftwood Lane which is part of the land leased to Habitat. Project Engineer John O’Reilly explained how the paved cul de sac would be servicing 2 mini neighborhoods by keeping green area which will contain sewage treatment. The 50 foot buffer would be undisturbed and uncut. They will be providing a mix of sizes and styles of homes with 1-4 bedrooms – some capes, ranches, ¾ capes and duplexes. Asphalt shingles on the roof and shingle sides will be common to all buildings.
PUBLIC COMMENTS: The project was presented to the Planning Board last night. They gave a favorable recommendation but written comments have not yet been received. Town Planner had no comments.
Mr. Messias, immediate abutter expressed his concerns about rentals being prohibited. He stated in Town Meeting it was voted approved but rentals were prohibited but the new language is allowing with approval from Habitat. He also noted that in 2 places the work area extends over the 50 foot buffer and asked if trees would be there.
Mr. Rys, also an abutter, asked who was responsible for the maintenance of the property and the response was the condo association for the common areas and the tenants for their exclusive use areas. He also asked for a line of trees to buffer the lots close to the roadway and asked that they retain as many trees as possible. Mr. Dickinson responded they may find they need planting in areas where the adjacent lots have cleared to their property lines. When asked what the earliest start time would be the response was the road and utilities could start early to mid summer.
Mr. Wiegman questioned the condo structure based on the areas the individual homeowners would be required to maintain and there will be a two party agreement requiring them to maintain there exclusive use areas.
Mr. Flink asked if Habitat dictates colors and they have not addressed that issue as of yet.
Mr. O’Connor, an abutter on Sterling Road was concerned that in the early plans there were plantings which seem to stop on these. He was told it was a drafting error and they will do everything on their part to rectify.
Mr. Flink alerted the public there will be more opportunities to express their concerns and asked that a draft list of conditions of what was heard and what the Boards sees and distribute for comment and consideration.
Mrs. Messias has an issue with allowing owners to rent their units and asked that it be put on the list. Mr. Flink reminded the public that this was the first meeting and there will be more opportunities to comment. Ms. Leven added that several conditions, such as a prohibition on renting the homes, cannot be undone by the Board but would require a Town Meeting vote.
Mr. Spampinato of 4 Driftwood Circle, asked how long it would take to construct and was told if they start mid summer they would start foundations for 2 houses in the fall and stagger construction from 2009 – 2010. Mr. Spampinato was concerned because he works nights and wanted to know when he would hear the noise and that it would be for a year and a half.
Mr. Flink proposed that each Board member submit lists of issues they want to discuss to Ms. Leven between now and the March meeting and give applicants a week before so they can review and respond and try to get approval of the abutters.
VOTE – Mr. Brown motioned to continue to March 26, Mr. Cavanaugh seconded, unanimous vote in favor.
Other business:
Ms. Leven addressed the Board concerning the appearance of conflict of interest on the part of a Board member who sat on cases and made positive motions on cases presented by an attorney who is currently representing an appeal this member filed. The Board was advised that while they may not feel that they need to disclose or recuse themselves from a particular matter, they need to look at how things are seen by members of the public.
VOTE: Mr. Brown motioned to approve 2 bills in the amounts of $383.96 and $179.95, Mr. Cavanuagh seconded, unanimous vote in favor.
VOTE: Mr. Brown motioned to adjourn, Mr. Cavanaugh seconded, unanimous vote in favor.
Meeting adjourned 9:50PM.
Respectfully submitted by Kathleen Girouard
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Richard Flink, Chair
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