Town of Barnstable Zoning Board of Appeals Minutes January 23, 2008

Town of Barnstable Zoning Board of Appeals Minutes January 23, 2008 A regularly scheduled and duly posted Public Hearing for the Town of Barnstable Zoning Board of Appeals was held on Wednesday, January 23, 2008 at 7:00 PM at the Town of Barnstable, Town Hall, 367 Main Street, Hyannis, MA. A quorum was met. Also present were Arthur Traczyk, Principal Planner and Carol Puckett Administrative Assistant. Gail Nightingale Present Ron Jansson Arrives at 7:09 Daniel Creedon III Absent James Hatfield Present Sheila Geiler Present John Norman Present Jeremy Gilmore Present Kelly Lydon Present Chairman Gail Nightingale opens the hearing and reads a summary of the appeals being heard tonight. She indicates that everyone that sat on the Centerville Gardens hearing are not here as of yet. She calls a two minute recess. At 7:04 PM she calls the Holmes & Holmes appeal Appeal 2008-002 - New Holmes & Holmes Modification of Use Variance 1996-152 Mark S. and Austin S. Holmes have applied for a modification of Use Variance 1996-152, Condition No. 3 that restricted that variance to a Karen J. Lovasco-Sutton. The variance allowed for a studio apartment within the existing dwelling and the applicants seek to have that variance transferred to them. The subject property is shown on Assessor s Map 270 as parcel 016, commonly addressed as 90 Dunn s Pond Road, Hyannis, MA. The property is in a Residence B Zoning District. Members assigned: Sheila Geiler, John Norman, James Hatfield, Kelly Lydon, Gail Nightingale

Mr. Holmes indicates that his brother and himself want to keep the variance and don t want to rent it out to anyone. Gail Nightingale asks if they have applied for a family apartment. Mr. Holmes indicates that he talked to Art Traczyk and that they were pointed to the ZBA from Linda Edson. Gail Nightingale indicates that they could be eligible for a family apartment instead of the relief being sought. Mr. Holmes indicates that they were not aware of a variance until the tenant moved out. Gail again indicates that he should be eligible for a family apartment. Gail Nightingale recommends that we continue this to February 27 th at 7:30. In the meantime, the Building Commissioner may grant a family apartment as of right. Continued to February 27, 2008 at 7:30 PM. She then calls the Duquette hearing at 7:10 PM as this is a shorter appeal. Appeal 2008-004 - New. Duquette Modification of Variance 2006-090 Donald and Virginia Duquette have applied for a modification of Variance 2006-090, that allowed for a detached family apartment. Condition No. 5 of the variance restricted further expansion of the buildings on the property and the applicants are seeking to add a 10 foot by 12 foot addition to the main dwelling. The property is addressed as 41 Overlook Drive, Centerville, MA and is shown on Assessor s Map 188 as parcel 086. It is in a Residence D-1 Zoning District. Members assigned: James Hatfield, Ron Jansson, Sheila Geiler, John Norman, Gail Nightingale Mr. Duquette and his wife are here and they are representing themselves. Mr. Duquette indicates that he is here to have an alteration to the dwelling and indicates that they have put in a new septic. Ron Jansson asks if the new addition will conform to the setbacks. Mr. Duquette indicates yes and gives the dimensions. Ron Jansson then asks for a site plan and indicates to Mr. Duquette that he will need a new site plan when he pulls a building permit and would like it submitted to this file. Gail Nightingale asks if there is anyone here either in favor or opposition. No one spoke. Ron Jansson does findings This is appeal 2008-004. It is an application for a modification of variance 2006-090. The petitioners are Donald and Virginia Duquette. The property is located at 41 Overlook Drive in Centerville on Assessor s Map 188, Parcel 086 and is in the RD-1 zoning district. 2

The applicants have the benefit of a variance that was granted in 2006 which a copy of that is attached to the staff report. Under the terms and conditions of the variance, the applicants were allowed to make legitimate, a detached family apartment unit. The applicants now seek to add a 10 X 12 foot addition not to the apartment unit, but to the primary family unit. The applicants understand that in all other regards that the variance that was granted in 2006 will have to be adhered to including the criteria for a family apartment. The proposed addition will not encroach into any of the setback requirements under our zoning bylaw. In view of the fact that this is a modification of a variance, this is not governed by the provision of Chapter 40A section 10 but rather the criteria that needs to be applied is whether or not the proposed modification will be substantially detrimental to the neighborhood affected and whether or not the granting of such a modification would be in derogation of the spirit and intent of the zoning bylaw. The proposed addition due to its small size would not be in derogation of the spirit nor the intent of the zoning bylaw since he could normally do this as a matter of right were it not for this condition. It would not be objectionable to the neighborhood in view of the fact that it is not encroaching into the sidelines or creating a massive building that would deter from the overall buildings already in existence. James Hatfield seconds. No discussion on the findings. Vote: AYE: James Hatfield, John Norman, Sheila Geiler, Ron Jansson, Gail Nightingale NAY: None Motion is made based on the unanimous, findings by the Board, he moves to grant the applicant the right to modify condition #5 only of the variance that was granted in appeal 2006-090 subject to the following terms and conditions. 1. This modification is granted to permit a 10 by 12-foot one-story addition only to the existing principal dwelling as per plans submitted and to be initialed and dated by the Chairman and are entitled New Proposed Addition Mr. and Mrs. Donald D. Duquette, 41 Overlook Drive, Centerville, Massachusetts dated October 11, as drawn by Lloyd M. Sherwood - Architect. 2. This modification shall be recorded at the Barnstable Registry of Deeds. A copy of that recorded document shall be submitted to the office of the Zoning Board of Appeals and to the Building Division prior to the issuance of any building permit. 3. With reference to the conditions imposed in appeal 2006-090 all conditions imposed therein shall remain unmodified other than condition #5. 4. The applicant upon applying for a building permit shall submit an engineered site plan showing that the addition is in conformity with all setback requirements bearing the engineer s or surveyor s seal on it and will remain part of the file as well. 3

5. If the variance is not recorded and a building permit for the addition applied for within one year of the filing of this variance with the Town Clerk, this variance shall expire. Any variance in terms and conditions in the grant of this relief shall be ground for this Board to rescind this modification. James Hatfield seconds. No discussion. Vote: AYE: James Hatfield, John Norman, Sheila Geiler, Ron Jansson, Gail Nightingale NAY: None GRANTED WITH CONDITIONS Gail Nightingale calls the Ladner appeal at 7:20 PM Appeal 2008-005 - New Ladner Bulk Variance, Minimum Front Yard Setbacks Thomas Ladner has applied for a Variance to Section 240-11.E, Bulk Regulations, Minimum Front Yard Setbacks. The applicant seeks to maintain a recently built attached garage, mudroom and deck to remain as built located 11.3-feet off Frost Lane where a minimum 20-foot front yard setback is required. The property is addressed as 101 Frost Lane, Hyannis, MA and is shown on Assessor s Map 289 as parcel 013. It is in a Residence B Zoning District. Mr. Ladner is here and indicates that Mr. Leif Bottcher, who is representing the applicant, is on vacation and has asked for a continuance. Continued to Feb 27 th at 7:45 PM Gail Nightingale and James Hatfield recuse themselves as the Centerville Gardens will now be heard. Ron Jansson takes over the chair. Appeals -99, 100 & 101 Continued Centerville Gardens Redevelopment Opened October 24,, continued December 5,, and to January 23, 2008. Continued to allow for input of Growth Management Department on access way to Wequaquet Lane. Members Assigned: Sheila Geiler, Jeremy Gilmore, Kelly Kevin Lydon, John Norman, Ron Jansson No Alternates Present 4

Appeals -99 - Conditional Use in a Highway Business - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-25 (C)(1) Conditional Use in a Highway Business District to allow for drive through banking. The applicant seeks to redevelop the site for office and banking use to include three drive-up lanes for banking. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal -100 - Use Variance for Driveway -Centerville Gardens, LLC, has applied for Variances to Section 240-11(A) Principal Permitted Uses and Section 240-11(E) Bulk Regulations of the Residence D-1 Zoning District. The applicant seeks to designate a 30-foot wide easement from Wequaquet Lane to property addressed as 1060 Falmouth Road (Route 28), Centerville/Hyannis, MA. The easement is to be developed as a driveway for access to and egress from a proposed office and bank development at 1060 Falmouth Road. The easement and business driveway is to be created over land zoned for residential use only. The property is addressed as 1060 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor s Map 250 as parcel 024, 023-X01, and 023-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Appeal -101 - Special Permit Structural Nonconformity in Site - Centerville Gardens, LLC, has petitioned for a Special Permit pursuant to Section 240-93.B Alteration Expansion of Nonconforming Building and Structure. The permit is sought to allow the continued nonconformity of the site with respect to the Groundwater Protection Overlay District requirement of 30% of the site to be retained in a natural state. The property is addressed as 1060 & 1080 Falmouth Road (Route 28), 28 and 36 Wequaquet Lane, Centerville/Hyannis, MA, as shown on Assessor s Map 250 as parcel 024, 023-X01, 023-X02 and 027-X02. It is in a Highway Business and Residence D-1 Zoning Districts. Ron Jansson explains why this was continued and indicates that Patty Daley Director of Growth Management Department is here and asks her to speak. Patty Daley indicates that they had been speaking informally with the proponent and the abutting proponent which is also up for development. She indicates that the Growth Management Department s concern regarding the development of this parcel and the adjacent parcel is the congestion on Route 28 and the potential for left turning movements into those two properties on Route 28. She indicates that left turning movements often creates a necessity to stop and wait which backs up traffic which causes more congestion on the roadway. She indicates that there is a signalized intersection right near those properties that could accommodate those left turns and that they have been working with the property owners to try and come up with an alternate that would relieve the congestion. What came out of those discussions was the proposed rear driveway which is before the Board. She indicates that her department feels that by allowing this rear driveway, which is on the edge of the residential district, will significantly reduce traffic congestion on Route 28. She indicates that they have also discussed with the proponents to do interconnections through the parking lots and is aware that the prior CVS decision had made that a requirement. In looking at the way the properties are set up it didn t seem appropriate to channel all the left hand turns through the CVS parking lot but was a better option to create this rear driveway. She indicates that they have been meeting with this proponent and the abutting proponent for several months and this was their 5

recommendation for the best option for reducing congestion on Route 28 resulting from the development of this property and the neighboring property. Ron Jansson indicates that he has concerns regarding traffic flowing through a residential area and asks if there is a way that the applicant could meet with staff and consider the possibilities of right in, right out only on Route 28 and work out current access issues with the current owners. Patty Daley indicates that right in and right out is difficult to enforce and it is difficult to create a curb cut that drivers will obey. She indicates that they have been discussing a median strip with another proponent to prevent those types of movements. She also agrees with Mr. Jansson that use variances should be granted sparingly but is advocating this use variance. Ron Jansson indicates that he would find it difficult to grant a use variance under Section 10 of Chapter 40A and asks again if there is any way that staff and proponents could meet. Patty Daley indicates that they would be glad to meet further with parties involved. Sheila Geiler asks if the other proponent with whom the median strip was discussed was the abutter (Blanchard s). Patty Daley indicates that Growth Management has been suggesting a median strip to the proponents of Blanchard s which she indicates has not been a welcome suggestion. Sheila Geiler comments about deliveries being made in a residential area. Patty Daley indicates that if right in, right out only curb cuts for both proposed properties it would accept deliveries for right turning trucks so that only the left turning trucks would be using the rear driveway. Sheila asks if the deliveries are made to the rear of the building. Patty indicates that if she thought this was going to be a bypass road she wouldn t recommend it and is unconcerned and that it has been discussed. Ron Jansson indicates that the applicant could put a bank and office without a drive-through as of right but because of the Route 28 traffic issue, he again suggests a meeting. Steve Miele, the applicant, indicates that the only alternative which he doesn t believe would work, would be a joint access with Blanchard s. However, Growth Management has already indicated to Blanchard s that they have to find a secondary egress out which would be that driveway out the back. Therefore, he doesn t see how that would work. He indicates that a letter in opposition from CVS regarding the traversing of traffic over the cross easement agreement which he has with them would be the only other alternative but would be a major issue. Ron Jansson gives the applicant the opportunity to work something out with staff regarding his appeal. Attorney Lawler wants two or three minutes to consult with his client. 6

Steve Miele indicates that his plan would have been to have his own curb cut onto Route 28 and a cross connection with CVS but hasn t had a chance to do that. Steve Miele asks Patty Daley if his plan would be a problem. Patty Daley indicates that she would want to think about it. Ron Jansson calls a brief recess at 7:45 in order for Mr. Lawler to consult with his clients. Ron Jansson calls the hearing back in session at 7:55 PM. Attorney Lawler indicates that another meeting may be helpful. Ron Jansson indicates that he wants to keep the public record open. Ron asks if there is anyone here from the public who would like to speak either in favor or in opposition. Paul Cooper at 46 Wequaquet Lane speaks and indicates that he lives just north of the proposed driveway. He indicates that he is concerned about the truck traffic from Phinney s Lane to Wequaquet Lane and indicates that he was told by Mr. Lawler it would increase traffic by approximately 350 cars and believes this will impact the quality of life in this neighborhood. He indicates that it will only be about 200 feet from the CVS entrance/exit and will make it impossible with the traffic. He indicates that it could impact the safety of the children coming home from school. Penelope Psomos attorney and member of the Greek Orthodox Church, is here to speak for the church and indicates that they are concerned about the traffic in this area. She indicates that on any given week there are weekly social groups, religious groups, classes with children, church functions, church diners, banquets, dances, private parties and also the occasional flu clinic and vote polling place at the church. She indicates that maybe the church would agree to the right in/right out and that maybe some option could be a viable solution and more acceptable to the church and welcomes any suggestion that would be helpful Leo Lordy who has lived there at 12 Wequaquet Lane, across from CVS for 30 years, speaks and indicates that in the summertime he can hear the screeching cars and traffic. He indicates that there is a lot of traffic from children going to school. He doesn t think it is fair for the neighbors, and that this would have a terrible impact on the residential area. Chris Alex who lives of 44 Sugar Hill Drive in Harwich and is a member of the Greek Church, speaks. He is concerned with traffic. He indicates that Patty Daley assumed that the traffic would turn left but he thinks it will turn right. He indicates that it is a danger to the children and the children of the church. He thinks the traffic congestion will be dangerous. Michelle Goodwin who lives at 39 Wequaquet Lane speaks and indicates that she is the one neighbor this would abut to and would be very disappointed if this went through. She indicates that she thinks they should be held to the same standards as someone trying to build a 3 car garage in an area where it is not permitted.. No-one else speaks. 7

Ron Jansson indicates that this will be continued to January 30 th at 7:30 PM and be held open for public comment. CONTINUED TO JANUARY 30, 2008 at 7:30 PM. Ron then turns the chair back over to Gail Nightingale Gail Nightingale calls the Carpenter appeal Appeal -093 - Continued Carpenter Special Permit Expansion of Single Family Dwelling Opened November 28,, continued to January 23, 2008 as the applicant/representative was present at the opening of the hearing. Samuel R. & Sharon O. Carpenter have petitioned for a Special Permit pursuant to Section 240-92.B - Alteration or Expansion of Nonconforming Buildings or Structures Used as Single- and Twofamily Residence. The applicants seek to remodel and expand the existing single-family dwelling located on the property. The proposed locations of the alterations do not conform to the required setbacks. The property is addressed as 10 Clark Avenue, Centerville (Craigville), MA. It is shown on Assessor s Map 226 as parcel 049. The property is in a Residence C Zoning District. Members assigned: Sheila Geiler, John Norman, James Hatfield, Jerry Gilmore, Gail Nightingale. Kelly Lydon is assigned as an alternate. Michael Gaspard is here representing the client and indicates that they want to bring the house back to what was originally there and bring it up to a livable standard. He indicates that that work to be done will not be going outside of the footprint. Kelly Lydon clarifies that he just wants to modernize the house and is trying to bring it up to code. Kelly asks if the septic needs to be updated. Michael Gaspard indicates that his client is not expanding bedrooms just more headroom upstairs. Kelly asks if this will be year round. Mr. Gaspard indicates that the applicants live out of state and visit here occasionally. John Norman asks if the septic is tied into the community septic system and whether this will be a problem getting a building permit prior to it being tied into the system. Mr. Gaspard indicates that this probably won t proceed until September of 2008 and by that time it should be tied into the community septic system. Gail Nightingale asks if there is anyone here from the public either in favor or in opposition. No one speaks and Gail indicates that there are no letters in the file either in favor or in opposition. 8

James Hatfield does findings Samuel R. & Sharon O. Carpenter have petitioned for a Special Permit pursuant to Section 240-92.B - Alteration or Expansion of Nonconforming Buildings or Structures Used as Single- and Twofamily Residence. The applicants seek to remodel and expand the existing single-family dwelling located on the property. The proposed locations of the alterations do not conform to the required setbacks. The property is addressed as 10 Clark Avenue, Centerville (Craigville), MA. It is shown on Assessor s Map 226 as parcel 049. The property is in a Residence C Zoning District The subject locus is a 3,792 sq.ft. lot developed with a 1,600 sq.ft. 1, 2 ½ story, five-bedroom single-family dwelling. According to the Assessor s record, the structure dates back to 1910 and is located in that historic area of Craigville commonly referred to as Christian Camp Meeting House Area. The petitioners, Samuel R. & Sharon O. Carpenter, purchased the property in July of 2003 The lot is undersized and the structure infringes into the required 20-foot front yard setbacks. The setbacks established by the structure are: 6.3-feet to Summerbell Avenue, 7.4-feet to Clark Avenue, and 1.0 foot to Pleasant Avenue. The petitioners tonight are seeking to expand and alter the existing structure. They want to increase the gross area which now is 2496 square feet to 2721 square feet. This will be an increase of 225 square feet. This addition would be within the existing footprint of the building and there will be no additional increase in the degree of nonconformity in terms of the setbacks. This proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure specifically for the reasons he just mentioned, basically it will be within the same footprint of the existing house and it a relatively small expansion of 225 square feet. The granting of the special permit also requires the following finding of facts to be made by the Board: that the application falls within a category specifically excepted in the ordinance for a grant of a special permit, that after evaluation of all the evidence presented, the proposal fulfills the spirit and intent of the zoning ordinance and would not represent a substantial detriment to the public good or the neighborhood affected. Jerry Gilmore seconds. 9

No discussion. Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Sheila Geiler, Gail Nightingale NAY: None James Hatfield makes a motion based upon the unanimous positive findings to grant the special permit along with the following conditions: 1. The alterations and expansion of the structure shall be in accordance with plans submitted to the Board. The plot plan for the improvements is entitled Plot Plan of Land Located at 10 Clark Avenue, Craigville, MA., prepared for: Samuel & Sharon Carpenter dated July 9, as drawn by Yankee Land Surveyors & Consultants. The architectural elevations for the improvements area entitled Carpenter Residence 100 Clark Ave. Centerville MA and consist of 4 sheets titled Front Elevation -Pleasant Avenue, Side Elevation - Clark Avenue, Side Elevation, and Rear Elevation - Summerbell Avenue. The floor plans are entitled Carpenter Residence 10 Clark Ave. Centerville. MA and consist of two sheets. 2. All construction shall conform to all applicable Building Codes, Fire regulations and Board of Health requirements. 3. All exterior mechanical equipment (electrical generators, air conditioning units, etc ) shall be located to conform to the district setback requirements and shall be screened from neighbors views. 4. The use of the half-story (upper most level) is restricted to storage and utilities. It shall not be converted to habitable area. 5. This decision must be recorded at the Barnstable Registry of Deeds and a copy of that recorded document must be submitted to the Zoning Board of Appeals office and to the Building Division at the time a building permit application is made. The relief authorized must be executed within one year of the granting of this permit. Jerry Gilmore seconds John Norman notes that there is a typographical error in Clark Avenue and it should be 10 Clark Avenue. Correction accepted. Jerry Gilmore asks about external generators, air conditioning within the setbacks. Michael Gaspard indicates that the applicants are not planning to do either at this time but agrees that they would have to come back before the Board if they do so plan to. Vote: AYE: Jerry Gilmore, James Hatfield, John Norman, Sheila Geiler, Gail Nightingale NAY: None Gail Nightingale reminds Mr. Gaspard that this must be executed within one year from issue. 10

GRANTED WITH CONDITIONS Gail Nightingale then calls the Ruscitto hearing. Appeal -064 - Continued Dwelling Ruscitto Special Permit Alter Nonconforming Opened August 8,, continued to October 10,, November 28,, January 9, 2008, and to January 23, 2008. Members Assigned: Ron Jansson, Randolph Childs, James Hatfield, John Norman, Gail Nightingale Alternates Present: Jeremy Gilmore, Kelly Kevin Lydon A letter dated January 10, 2008 from Attorney Kevin M. Kirrane has requested that this Appeal be allowed to be withdrawn. The letter cites that the plans for the expansion have been modified to conform to the requirements of zoning for a building permit to issue as of right. Robert A. Ruscitto and Bette J. Ruscitto have petitioned for a Special Permit pursuant to Section 240-92.B for the Alteration/Expansion of Nonconforming Buildings Used as Single-family Residences. The petitioners propose to expand the existing dwelling with a two-story addition. The proposed addition is located 14.2 feet off Harbor View Road and is not in conformance with the current required front yard setback of 20 feet. The property is addressed as 73 George Street, Barnstable, MA and is shown on Assessor s Map 319 as parcel 058. It is in a Residence B Zoning District. Gail Nightingale indicates that the Members assigned: James Hatfield, John Norman, Gail Nightingale, Kelly Lydon, Jerry Gilmore as Ron Jansson has left for the evening and Randy Childs is no longer on the Board. Gail then reads the letter from Attorney Kirrane requesting to Withdraw without Prejudice. Jerry Gilmore makes a motion to Withdraw without Prejudice. Kelly Lydon seconds. Vote: AYE: James Hatfield, John Norman, Gail Nightingale, Kelly Lydon, Jerry Gilmore NAY: None WITHDRAWN WTHOUT PREJUDICE. Gail Nightingale then talks about the minutes. 11

Motion is made to approve the minutes for on the website. Jerry Gilmore seconds Minutes accepted for. Motion to adjourn. Motion seconded. Meeting adjourned. 12