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Zoning Board of Appeals Minutes 12/12/2012
MASHPEE ZONING BOARD OF APPEALS
MINUTES
DECEMBER 12, 2012

The Mashpee Zoning Board of Appeals held Public Hearings on Wednesday, December 12, 2012 at 6:00 p.m. in Conference Room #1 at the Mashpee Town Hall, 16 Great Neck Road North.  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros were present.  Building Commissioner Richard E. Morgan was also present.  Board Members James Reiffarth and Judith M. Horton were unable to attend the meeting.

Chairman Jonathan D. Furbush opened the meeting at 6:00 p.m. and announced that the meeting was being televised live on local Mashpee television.  

PLEDGE OF ALLEGIANCE

Mr. Furbush said that the Board will hear the Petitioners’ presentation first; next, the Board will ask questions; then abutter letters and emails will be read into the record.  Finally, the meeting will be opened up to public comment.  Mr. Furbush requested anyone wishing to address the Board to raise their hand and wait to be recognized by the Chairman before coming to the microphone with their comments.  

Mr. Furbush said that the three Board Members and two Associate Members would be sitting on all of the Petitions tonight.

REQUEST FOR MODIFICATION

Housing Assistance Corporation: Requests a Second Modification to an existing Comprehensive Permit CP-2010-29 on property located in an R-5 zoning district at 570 Old Barnstable Road (Map 72 Parcel 100) Mashpee, MA.  At the August 22, 2012 Public Hearings, the ZBA voted to grant a Modification to the 2010 Comprehensive Permit.  

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Attorney Andrew Singer represented the Petition along with Ms. Adrienne Danner from the Housing Assistance Corporation.  Attorney Singer stated that this request for Modification to the Comprehensive Permit will satisfy legal requirements of Mass Housing.  The revised sketch plan of the property clarifies the separation between the existing Breezy Acres development in the front and the Great Cove Community development in the back of the property.  There are no changes in the development plans.  Attorney Singer said that in the previous language, in the event of a foreclosure, an alternative calculation of 20% of the units at the 50% level could remain affordable.  In order to meet Chapter 40B requirements, only a minimum of 25% at the 80% level is required.  In view of the fact that the Housing Assistance Corporation is providing for more than 25%, Mass Housing is requiring that language in the Decision reflect the minimum requirements in case of foreclosure.   Attorney Singer said that in the case of rentals, all of the units are counted even if the other 75% rental units are market rate.  This means that the inventory count would remain the same.

No comments were received from abutters.

Mr. Bonvie made a motion to approve the request for a Second Modification to an existing Comprehensive Permit CP-2010-29.  This is conditioned upon compliance with Horsley Witten Group plan entitled: PLAN SET: GREAT COVE COMMUNITY, 570 OLD BARNSTABLE RD. MASHPEE, MASSACHUSETTS, COMPREHENSIVE PERMIT LAND PLAN, DATE 10-8-2012.
Mr. Furbush seconded the motion.  Votes:  Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Vote was unanimous.  

NEW HEARINGS

Kathleen A. Impey: Requests a Special Permit under §174-25.I(9) of the Zoning By-laws to allow for construction of a pier, ramp and float proposed to extend across a total of more than seventy (70) feet of coastal beach, coastal bank, salt marsh or bordering vegetated wetlands on property located in an R-3 zoning district at 90 Captains Row (Map 96 Parcel 11) Mashpee, MA.

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Mr.  John Slavinsky from Cape & Islands Engineering represented the Petition and stated that plans call for construction of a dock that extends 97 feet from the mean high water mark.  The extra dock length is necessary in order to access deeper water.  At the request of the Harbormaster, the proposal was reduced 12 feet in length in order to line up with the abutters’ docks.  Mr. Slavinsky said that the Waterways Commission and the DEP have also approved the plan.  He said that there is a walkway down to the Association beach.  The proposed float is not in the shape of a “T” in order to protect people in the swimming area.  

Conservation Commission approved the proposal and issued an Order of Conditions on November 27, 2012.  Shellfish Constable Richard York’s November 15, 2012 email indicates that the proposal will not pose a problem for shellfish.  Not having heard from Waterways or the Harbormaster, Mr. Blaisdell said that the ZBA will apply the following By-law: “Failure to comment by any particular Department shall be interpreted as approval.”  

Mr. James Boutilier, 44 Buccaneer Way, President of the Cove Association said that he discussed his concerns with the Petitioner’s engineer and he has no objections to the proposal.

Mr. Bonvie made a motion to approve the request for a Special Permit.  This is subject to:
  • Harbormaster approval.
  • Waterways Commission approval.  
  • Compliance with Cape & Islands Engineering plan entitled Proposed Pier, Ramp & Float Located in Mashpee, Mass. Prepared for Kathleen Impey.  Date: Oct.12,2012.  Revised Oct.17,2012; Nov.1,2012; Nov.3,2012; Nov.9,2012.  
Mr. Blaisdell seconded the motion.  Votes: Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Vote was unanimous.

Vernon J. and Sharon L. Carloni: Request a Variance from §174-31 of the Zoning By-laws to vary the lot size and frontage requirements to allow as buildable a parcel of land located in an R-5 zoning district at 70 Pimlico Pond Road (Map 3 Parcel 18) Mashpee, MA.  

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Mr. Wayne K. Carloni, 72 Pimlico Pond Road, represented the Petition for his brother and sister-in-law.  70 Pimlico Pond Road consists of 11,216 square feet with an assessed value of $86,300.  Mr. Carloni asked the Board for Variance relief from the lot size and frontage requirements.  He said that his parents, Virgil and Muriel, purchased the three distinct parcels at 70, 72, and 76 Pimlico Pond Road in 1977.  The parcels were under separate ownership; one parcel contained his parents’ cottage and the other two parcels remain undeveloped.  In 2005, ownership of the house and parcel at 72 Pimlico Pond Road was transferred to Wayne.  His brother, Vernon, received the parcel at 70 Pimlico Pond in 2007.  

Before his death in 2011, Virgil Carloni was primary caregiver for his wife, Muriel.  Virgil’s last wish was that 76 Pimlico Pond Road should be sold to assist in paying for Muriel’s long-time care in a nursing facility.  Mr. Carloni submitted extra copies of maps and site plans to the Board and said that 70, 72, and 76 Pimlico Pond Road are the same size as the lots across the street and elsewhere in the subdivision.  These lots were created prior to adoption of the Zoning By-laws.  Mr. Carloni said that the family was unaware of the Zoning changes that made the parcels non-conforming.  
 
Board of Health memo: The Board of Health has no comments for the requested variance relief.  This parcel is within Conservation Commission jurisdiction.  Any ground disturbance will require Conservation Commission permitting.

Building Commissioner Richard Morgan expressed concern with the lot’s narrow frontage.  Mr. Furbush agreed, but added that the Board is not creating a new non-conforming lot.  He said that the lot was created years ago and has been taxed as distinct, separate, and buildable.  According to the plans, Mr. Dorsey said that it appears that the lot exists unchanged since 1961.  The Board discussed the idea of restricting development of the lot within a building envelope.  

Mr. Blaisdell made a motion to grant the following Variance relief:
  • 68,784 square feet from the lot size requirements.
  • 75 feet from the frontage requirements.
Findings: unusual shape of lot.
This is conditioned upon the following:
  • Because the ZBA will not grant further Variance relief, development of the parcel shall remain in compliance with front setback requirements of 40; side and rear setback requirements of 25 feet.
  • Development of the subject property shall not exceed 20% lot coverage.
  • Compliance with Eastbound Land Surveying, Inc. plan entitled: Certified Plot Plan, Carloni Residence, 72 Pimlico Pond Road, Mashpee, MA. Date: 11-30-12.
  • Conservation Commission approval.
  • Board of Health approval.
Mr. Furbush seconded the motion.  Votes:  Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, no.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Motion passed 4:1.

Wayne K. Carloni: Requests a Variance from §174-31 of the Zoning By-laws to vary the lot size and frontage requirements to allow for an existing dwelling on property located in an R-5 zoning district at 72 Pimlico Pond Road (Map 3 Parcel 19) Mashpee, MA.

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Mr. Wayne K. Carloni represented his Petition and stated that 72 Pimlico Pond Road consists of 42,949 square feet.  Its value along with the home is assessed at  $462,300.  He asked the Board for Variance relief from the lot size and frontage requirements.  He reiterated his history of the three lots at 70, 72, and 76 Pimlico Pond Road.  Mr. Carloni said that the home is well over 100 years old and was originally a boathouse.  

Building Commissioner Richard Morgan said that since the lot and home are pre-existing and non-conforming, the only relief required is a Variance from the lot size and frontage requirements.  

Mr. Carloni submitted a copy of the driveway easement.  The Board discussed the driveway at 72 Pimlico Pond which is built over a portion of the property at 76 Pimlico Pond Road and concurred that the plan and easement plan are the same.  Mr. Morgan agreed, but cautioned Mr. Carloni to contain anything he does on his own property at 72 Pimlico Pond Road and to ensure that no water is cast off onto the abutting lot at 76 Pimlico Pond Road.     

Board of Health memo: The Board of Health has no comments for the requested variance relief.  This parcel is within Conservation Commission jurisdiction.  Any ground disturbance will require Conservation Commission permitting.

Mr. Blaisdell made a motion to approve the following Variance relief:
  • 37,051 square feet from the lot size requirements.
  • 125.51 feet from the frontage requirements.
Findings: soil conditions impacted by presence of body of water, sloping topography, unusual and narrow shape of the lot.
This is conditioned upon compliance with the following:
  • Eastbound Land Surveying, Inc. plan entitled: Certified Plot Plan, Carloni Residence, 72 Pimlico Pond Road, Mashpee, MA. Date: 11-30-12.  
  • Document: 1,180,365 entitled: GRANT OF EASEMENT and recorded at the Barnstable Land Court Registry on 12-19-2011.   
Mr. Furbush seconded the motion.  Votes:  Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Vote was unanimous.

Muriel C. Carloni: Requests a Variance from §174-31 of the Zoning By-laws to vary the lot size and frontage requirements to allow as buildable a parcel of land located in an R-5 zoning district at 76 Pimlico Pond Road (Map 3 Parcel 20) Mashpee, MA.

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Mr. Wayne K. Carloni represented the Petition for his mother and asked the Board for Variance relief from the lot size and frontage requirements.  He reiterated his history of the parcels at 70, 72 and 76 Pimlico Pond Road and the driveway easement.  76 Pimlico Pond Road consists of 57,054 square feet with an assessed value of $341,900.

Board of Health memo: The Board of Health has no comments for the requested variance relief.  This parcel is within Conservation Commission jurisdiction.  Any ground disturbance will require Conservation Commission permitting.

Mr. and Mrs. Peter Garabedian, abutters at 86 Pimlico Pond Road sent an email “vehemently against the granting of the mentioned Variance for Muriel C. Carloni at 76 Pimlico Pond Road” because the undeveloped lot “does not meet the town’s ZBA regulations and it falls in fragile environmental area bordering Wakeby Pond.”

The Board discussed the Petition at length.  Mr. Furbush noted that the Garabedian’s  developed lot appears comparable in size to the property at 76 Pimlico Pond Road.

Mr. Blaisdell made a motion to approve the following Variance relief:
  • 22,946 square feet from the lot size requirements.
  • 40.51 feet from the frontage requirements.  
Findings: soil conditions impacted by presence of body of water, unusual and narrow shape of the lot.
This is conditioned upon compliance with the following:
  • Eastbound Land Surveying, Inc. plan entitled: Certified Plot Plan, Carloni Residence, 72 Pimlico Pond Road, Mashpee, MA. Date: 11-30-12.
  • Document: 1,180,365 entitled: GRANT OF EASEMENT and recorded at the Barnstable Land Court Registry on 12-19-2011.
  • Because the ZBA will not grant further Variance relief, development of the parcel shall remain in compliance with setback to water and wetlands; and with front setback requirements of 40; side and rear setback requirements of 25 feet.  
  • Development of the subject property shall not exceed 20% lot coverage.
  • Conservation Commission approval.
  • Board of Health approval.
Mr. Furbush seconded the motion.  Votes:  Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Vote was unanimous.

Nicholas S. and Ann K. Mabardy: Request a Written Finding under §174-17 of the Zoning By-laws and M.G.L. Chapter 40A §6 concerning continuance, extension or alteration of non-conforming structures to allow for construction of a single-family dwelling on property located in an R-3 zoning district at 2 Rock Island Road (Map 123 Parcel 17) Mashpee, MA.

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Nicholas S. and Ann K. Mabardy: Request a Special Permit under §174-20 of the Zoning By-laws concerning rebuilding of destroyed or damaged non-conforming structures to allow for construction of a single-family dwelling on property located in an R-3 zoning district at 2 Rock Island Road (Map 123 Parcel 17) Mashpee, MA.

Sitting:  Board Members Jonathan D. Furbush, William A. Blaisdell, and Ronald S. Bonvie, and Associate Members John M. Dorsey and Domingo K. DeBarros.

Attorney Kevin M. Kirrane represented the Petitions along with Mr. Mabardy.  Attorney Kirrane stated that while the existing dwelling is assessed at only $50,000, the land is assessed at nearly $450,000.  He stated that the surveyor was not aware of Town Counsel’s opinion that the buffer zone cannot be used toward total lot coverage.  The subject property contains 4,000 square feet of land and existing lot coverage is actually 31.5%.  The existing dwelling does not conform to the side setback requirements of 15 feet.  It exceeds the 20% lot coverage requirements.  Current setback on one side is 3 feet; setback on the southeasterly side is 10.7 feet.  The front setback is approximately seven feet from the 40-foot wide easement and is in excess of 20 feet from the paved surface of the easement.  

Plans call for demolition of the existing dwelling.  The new dwelling will be 3.5 feet further away from the northeasterly side setback.  Other improvements include replacement of the old cesspool with installation of a new Title V septic system.  Another significant enhancement will be a new dwelling that conforms to current building code requirements.  While the existing dwelling sits on the ground, the new dwelling will have a foundation.  Lot coverage will decrease from 31.5% to 30.9%.  With all of the proposed improvements, Attorney Kirrane said that the proposal is not substantially more detrimental than what currently exists.  He stated that the proposal is a modest-sized home that will fit in well with the other homes in the neighborhood.  There is adequate land area to provide parking and setbacks.    
 
Board of Health Comments: In Zone II.  The Board of Health has no information on file regarding this lot.  A housing inspection is required by an agent of the Board of Health prior to demolition of the dwelling, as the number of existing bedrooms must be verified.  The new proposed dwelling will be restricted to the number of bedrooms documented during the housing inspection.  

This project is not within Conservation Commission jurisdiction.

Mr. Furbush said that he was concerned that the proposal is so much closer to the street and does not line up or fall within the average setback of the other homes on the street.  He stated that the proposal is too large for the small lot and should be scaled down.  Attorney Kirrane said that he has never known the ZBA to demand a Petitioner to build a smaller dwelling on a lot than what currently exists.  He said that 20% lot coverage of a 4,000 square-foot lot is only 800 square feet for a dwelling.  Attorney Kirrane said that his presentation centers on the fact that the proposal is not looking for more lot coverage than what currently exists.  Mr. Furbush said that he agrees, but the Board has never allowed 31% lot coverage.   
  
Mr. Blaisdell reiterated Attorney Kirrane’s argument: the proposal will reduce the non-conformity in lot coverage and one side setback.  

Letters from abutters Henry and Dee Sockbeson, 294 Shore Drive; Peter and Sharon Readel, 22 Pine Avenue; Walter Dardano, 14 Rock Island Road; Paul Dardano, 23 Pine Avenue; and Jeremy Carter, 7 Pine Avenue, were read into the record with objections to the following:
  • Inclusion of the buffer zone toward calculating total lot coverage.
  • Exceeding 20% lot coverage.
  • Exceeding the average setback of other homes on the street.
Mr. James Collins, of 4 and 6 Rock Island Road, said that he has lived there for 40 years and has been Mr. Mabardy’s neighbor for 30 years.  He stated that there is a 15-foot building line identified for plans on Rock Landing Road and showed the Board a map of the road dating back to 1941.  Mr. Collins digressed into a discourse about the Wilson and Rawan properties, patios being counted as part of lot coverage, septic systems and opined that the proposal does not have to encroach into the building line in order to accommodate the new septic system.

Mr. Henry Sockbeson, 294 Shore Drive, said that he was concerned that the proposal would not maintain the 13- to 15-foot setback of the other homes.  He said that he was concerned about the proposed lot coverage.

Mr. Nicholas Mabardy said that he understands his neighbors’ concerns.  He stated that his intention is to build a home that is comparable to other homes in the neighborhood, such as the Collins’ home.  He said that he discussed his proposal with the Collins family, the Chairman of the Rock Island Road Association, and other neighbors.  Mr. Mabardy said that he and his wife have opened the structure in the spring and, several times over the years, found it infested with raccoons and squirrels.  The floor is sagging and the roof is deteriorating.  Rather than investing time and money into major repairs every year, Mr. Mabardy said that he and his wife decided to raze and replace the old structure with a modest and tasteful new home.

Attorney Kirrane said that the distances on the plan for the proposed septic system are in compliance with the Board of Health and Title V requirements.  

Mr. Blaisdell said that his opinion is that the proposal is not substantially more detrimental than what currently exists.  Mr. Bonvie asked Attorney Kirrane to consider making some compromise so that everyone would be happy.  Mr. Dorsey said that he would not have a problem if the Petitioner builds within the same footprint.  Mr. Furbush said that he would like to continue the Petition to allow for Town Counsel opinion.  Mr. Blaisdell said that he would like to attend that meeting.

Mr. Bonvie made a motion to continue the Petition until January 9, 2013.  Mr. Furbush seconded the motion.  Votes: Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Vote was unanimous.

OTHER BUSINESS

Approve November 14, 2012 Minutes
Mr. Blaisdell made a motion to approve the Minutes.  Mr. Furbush said that the word “recommendation” should be changed to “approval” on pages 5 and 6 of the Minutes concerning Design Review and the bowling alley signage.  Mr. Dorsey seconded the motion.  Votes: Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  

Discuss draft of 2012 ZBA Annual Town Report
Mr. Furbush made a motion to approve the report.  Mr. Blaisdell seconded the motion.  Votes: Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  

Discuss letter from abutter concerning Doggy Daycare located at 46 Nicoletta’s Way: Mr. Furbush read the following email dated December 5, 2012:

Dear Chairman,

Thank you for the opportunity to comment on the petition of Lisa J. McAdams, in regards to a special permit under section 174-25.E(7) of the town of Mashpee zoning by-laws to allow for a kennel free alternative doggy daycare socialization and overnight boarding on the property located at 46 Nicoletta’s Way (map 27 Parcel 160)

At a recent meeting of the trustees of Nicoletta’s Way Association Trust we agreed to support Ms. McAdams petition.

As local business owners we support and welcome most all new businesses endeavors to our industrial park and wish Ms. McAdams the best of luck in her new venture.

However, there were some concerns that I would like to bring to your attention:
  • There is concern that barking (howling etc) during both business and non business hours may have an adverse effect on surrounding businesses.
  • There is a concern that dog feces if not properly picked up and disposed of could cause a problem for employees of businesses in the park, who use the area for walks and recreation.
  • There is a concern about leaving animals unattended, unmonitored and unkenneled overnight.
  • There is a concern about dogs running loose around the property.
Assuming the aforementioned concerns are addressed, we support Ms. McAdams petition and welcome her and her business to our beautiful park.

In the event that these issues become a problem we would like the opportunity to re address them at a ZBA meeting in the future.

Sincerely,
Lance Lambros, Trustee

CEO Cape Cod Sportswear, Ltd
56 Nicoletta’s Way
Mashpee, MA 02649

Mr. Furbush said that the runaway dogs, barking, overnight boarding, and waste management concerns were addressed at the Plan Review Committee and ZBA meetings.  Mr. Bonvie said that Mr. Lambros is concerned with the potential for problems in the future.  Mr. Furbush said that Ms. McAdams assured the Board that her proposal would not pose problems for the tenants.

Distribute Land Court Document: Janet E. Krock, et al. (4 Cross Street) v. ZBA

Mr. Bonvie made a motion to adjourn the meeting.  Mr. Furbush seconded the motion.  Votes: Mr. Furbush, yes.  Mr. Blaisdell, yes.  Mr. Bonvie, yes.  Mr. Dorsey, yes.  Mr. DeBarros, yes.  Meeting was adjourned at 8:35 p.m.

Respectfully submitted,


Cynthia Bartos
Administrative Secretary
Zoning Board of Appeals


 

16 Great Neck Road North, Mashpee, MA 02649






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