Zoning Board of Appeals Meeting

Town of Harwich

ZONING BOARD OF APPEALS

tel:  508-430-7506   fax: 508-430-4703

 

PUBLIC HEARING

Wednesday, August 26, 2015 at 7:00 p.m.

Griffin Meeting Room, Harwich Town Hall

 

MINUTES

 

On Wednesday, August 26, 2015 at 7:00 PM, the Harwich Zoning Board of Appeals held a Public Hearing in the Griffin Meeting Room at the Harwich Town Hall to hear the following cases.

 Case #2015-36

Susan C. Jordan, owner, c/o James B. Stinson, Esq. applied for a Special Permit for a change in use of a barn from a residential accessory building without bedrooms to a residential accessory building with one bedroom. The application is pursuant to the Code of the Town of Harwich §325-14 Q and § 325-51 as set forth in MGL Chapter 40A Section 6. The property is located at 13 Homer Road, Map 23, Parcel X4-4 in the RH Zoning District.

 

Voting on this case were: Paul Doane, John Burke, Gary Carreiro, Dean Hederstedt and Kathleen Muller.

 

Presenting for the applicants was Attorney Howard Cahoon, associate of Attorney James Stinson. Attorney Cahoon referred to the application and the 2006 Building Permit issued to Ms. Jordan for building the barn and asked that the Board grant the request for a Special Permit to allow the inclusion of one bedroom and a bath on the second floor of the new building. The septic is sufficient for the additional bedroom. He offered that there would be no adverse affect to the neighborhood, no increase in traffic, and no nuisance or hazard. The use would be appropriate to the oversized lot.

 

There was no public discussion.

 

John Burke noted that no specific sub-section of §325-51 was referred to in the application. Attorney Cahoon answered that §325-51 was appropriate because the petitioners are not looking to add an apartment but only a bedroom and a bathroom. There will be no kitchen.

Dean Hederstedt asked if there would be any change in the footprint and Attorney Cahoon answered that the footprint will be the same as the 2006 approved plan. Kathleen Muller wanted to know if the owners had any plans to rent and Attorney Cahoon answered that they did not. Mr. Campbell wanted clarification on the capacity of the septic system and Attorney Cahoon noted that although the septic allowed for 5 bedrooms, the addition of the bedroom in the barn would only bring the total number to 3 bedrooms.

 

Kathleen Muller moved and John Burke seconded to close the discussion.

Then Dean Hederstedt moved to grant the request for the Special Permit for a change of use for the barn at 13 Homer Road from an accessory building with no bedrooms to an accessory building with 1 bedroom with the condition that there be no change in the footprint and no exterior work. The motion was seconded by Kathleen Muller and was carried by unanimous approval.

 

 

 

Case #2015-37

Robert and Maureen E. Dickinson, owners, c/o William D. Crowell, Esq. applied for a Special Permit or in the alternative, a Variance to raze and replace a pre-existing, non-conforming single family dwelling. The application is pursuant to the Code of the Town of Harwich §325-54 A(6) and §325 Table 2 as set forth in MGL Chapter 40A Section 6 and Section 10. The property is located at 16 Park Place, Map 3, Parcel Z1 in the RH-2 Zoning District.

 

Voting on this case were Paul Doane, John Burke, Gary Carreiro, Dean Hederstedt and Kathleen Muller.

 

Presenting for the applicants was Attorney William Crowell with Ron Slowak of Ambrose Builders. Attorney Crowell introduced the owners and noted that they are both member of the US Air Force. He explained that the house is on the corner of Ocean Ave. and Park Place south of Lower County Road. The existing dwelling would be demolished and rebuilt according to the submitted plans. The Health Department has approved the plan and explained to the owners the deed restriction of 2 bedrooms. The existing home has 2 bedrooms and the new home would have 2 bedrooms. The northeasterly corner would be inches closer to the lot line; the setbacks changing from 7.4’ to 7.1’ to the north and from 9.7’ to 9.1’ to the east. The other corners would be no closer to the lot lines. As the corner of the current dwelling is non-conforming the existing building is pre-existing, non-conforming and triggers the Gale Case with the intensification of the non-conformity. There will be no new nonconformity. The existing building coverage is 23.1% which will change to 28.5%, below the allowed 30% for this Zone. The existing site coverage is 31% which will increase to 34.9%, below the allowable 35%. Attorney Crowell added that there would be no substantial detriment to the neighborhood, no significant increase in noise, odor, fumes or congestion and asked the Board to grant the request for the Special Permit.

 

There was no public discussion.

 

Paul Doane wanted to discuss how the Gale Case applied and he and Attorney Crowell debated the application of that decision. Mr. Doane also wanted clarification on some of the coverage percentages and how they were reached. Dan Croteau of Moran Engineering attempted to clear some of the confusion by noting that the addition of a roof over an outdoor shower moved that area into the category of building coverage and reduced the site coverage number. He also said that some of the parking area may be changed to grass which would eliminate those areas from total site coverage.

 

Kathleen Muller also had questions about how the Engineer reached the building and site coverage calculations and after further discussion Attorney Crowell noted that Mr. Croteau’s stamp on the plans assured that the Engineer and Builder would work with the Building Department to ensure that all limits were honored. John Burke agreed that the Board needed to defer to the Building Commissioner to keep the limits to the proper amounts.

 

Mr. Hederstedt had additional questions on why the Gale case applied and Attorney Crowell answered that because the applicant was intensifying an existing non-conformity and not adding any new non-conformity that the new plan clearly followed the reasoning of the Gale case. Mr. Campbell asked if the Health Agent had favorably reviewed the plan and Attorney Crowell said that she had.

 

Dean Hederstedt moved and Mr. Burke seconded to close discussion with unanimous approval.

Mr. Hederstedt then moved to grant the Special Permit to raze and replace the pre-existing, non-conforming dwelling at 16 Park Place according to the plans submitted by Moran Engineering and Ambrose Builders. Paul Doane seconded that motion and all voted unanimously in favor.

 

 

Case #2015-35

Douglas Godshall and Cristy Godshall, owners, c/o Andrew L. Singer, Esq. have applied for a Special Permit and a Variance to remove and replace a pre-existing, non-conforming single family 2-story dwelling. The application is pursuant to the Code of the Town of Harwich §325-5, §325-54 and §325-15 Table 2 as set forth in MGL Chapter 40A Section 6 and Section 10. The property is located at 2A Sea Street, Map 7, Parcel D2 in the RH-1 Zoning District.

 

Voting on this case were Paul Doane, John Burke, Gary Carreiro, Dean Hederstedt and Kathleen Muller.

 

Presenting for the applicants was Attorney Andrew Singer who introduced the owner, Douglas Godshall as well as the builder, Harry Ellis, Dan Croteau of Moran Engineering and Dan Silver of Chatham Building and Design.

 

Attorney Singer passed out a number of photos showing various views of the property from a variety of angles and at different stages of construction. He also referred to a number of enlarged plans that detailed the private way in front of the Godshall’s house. Although the Godshalls have ownership of that private way, the owners of 2 Sea Street have a right of way easement. Attorney Singer restated details of the application focusing on the procedural history. He explained that as the project which was approved by the Zoning Board of Appeals in 2014 unfolded, it became clear that there were underlying structural problems which required a structural Engineer’s advise. The Builder then followed the recommendations of the structural engineer and went beyond the limits of the original Special Permit. Once a complaint was filed with the Building Department by neighbors who were concerned about the extent of the demolition, all work stopped. There was never a Cease and Desist ordered. Because the amount of the building removed went beyond 51%, the project was considered to be a demolition. Attorney Singer and the Builder, Harry Ellis, met with the Building Commissioner and the Conservation Agent to see how best to proceed and realized that the plan as originally approved could no longer be built because of the newly implemented FEMA regulations placing the Godshall’s home in the “A” Velocity Zone. This would require the foundation to be lifted an additional 2’, resulting in a final height of the dwelling being higher than is allowed by the Code of the Town of Harwich. Attorney Singer posited that the new plan put before the Board would bring the house landward and outside of the Velocity Zone and would not have to be built as high to be flood compliant. There would be a reduction in the density of the house from the original home, from 8 bedrooms to 5 bedrooms with the Board of Health having approved the new septic plan which will be over 50’ from the neighbor’s house. All runoff will be contained on site with a flood certified foundation and the Conservation Committee has given an Order of Conditions that the house will conform on 3 sides to required setbacks with appropriate vegetative buffer setbacks. Total site coverage will be reduced from 18.3% to 13.3%.

 

Attorney Singer asked for the Board’s approval of the request for the Special Permit under §325 54 to raze and replace the pre-existing, non-conforming structure and a Variance to allow the rebuilt house to be closer than the required front setback to their private way road under §325-5 and §325-15 Table 2. He told the Board that there would be no change in use of the property, a reduction in the density of the house and the plan would not be substantially more detrimental to the neighborhood. He said that the dunes, coastal beach and coastal dunes, although not unique along the coast now qualify as unique shape, soil and topography because of the new FEMA Velocity Zone and create a substantial hardship to the owners and require moving the house closer to the “paper” private way. The plan does far more good than harm and does not derogate from the intent of the bylaw.

 

Gary Carreiro asked for clarification on which parts of the house would be replaced and which would be moved and Harry Ellis stated that the new portion would be raised up and moved. John Burke questioned the need for a Special Permit as the new house would be conforming but for a deficient front yard setback. Dave Riquinha, the Building Commissioner, clarified that §325-54 (A)(4) and (A)(5) require a Special Permit to raze and replace a pre-existing, non-conforming dwelling unless the new house would be entirely conforming. Mr. Burke suggested that one could argue that only a Variance was needed but would defer to the judgment of the Building Commissioner. He then wanted more information as to the ownership and easements associated with the private way. Attorney Singer told him that the Godsalls own the fee and soil of the entire way.

 

Attorney David Reid spoke on behalf of the Campbells of 18 and 20 Sea Street to the north of the Godshalls house. They opposed the granting of the original Special Permit in 2014 and again object to the request for a Special Permit and Variance as part of the current application on the grounds that the new plan would negatively impact the Campbell’s view. Attorney Reid questioned the stated height of the proposed building. Dan Silver of Chatham Building and Design attempted to clarify and stated that the use of the word “elevation” on 2 different versions of plans for the Godshall’s house described different information. Once it is being used to refer to the elevation of the top of the building from sea level and another time it is being used to measure the height of the house from the mean grade. He also stated that the proposed building will have no increase in building height and will comply with the Town of Harwich Code restrictions on height. Dan Croteau of Moran Engineering added that the proposed building height is 29’4” with an elevation from sea level of 36’. The house to the west of 2A Sea Street is 4.5’ higher as is 1 Sea Street. The owners of 6 Pilgrim Road, the Ryans, were wrong when in their letter to the Board they claimed the Godshall’s new septic would be within 12’ of their property. Dan Croteau corrected that misunderstanding by telling the Board that the new septic would be approximately 77’ from the Ryan’s property. Mr. Croteau also added that the owners chose not to put their house on pilings in order to comply with the new FEMA regulation because they wanted the new house to fit in with the neighborhood and did not want to further block their neighbor’s view. The proposed house is farther from the sensitive coastal area, has less height, less bulk and with the new FEMA regulations, the Godshalls could not meet those requirements as well as the Harwich Building Code within the new Velocity Zone.

 

Attorney Reid handed out photos of the project taken in April when demolition had gone beyond what was allowed in the original Special Permit. He said there are standards which need to be adhered to for a “replace and renovate” project and that the owners did not follow those and now want the Board to legitimize their mistake. He believes the setback requirement applies for the private way and also believes his clients have a right of access to that private way in front of the Godshall’s property. The applicants need to measure from the edge of that road so they need a Special Permit and a Variance. He believes the retaining walls also require Variances. Attorney Reid continued that he believes that there is more than a 25% increase in the habitable area and the applicants do not meet the requirements for any Variance. His contention is that the beach, banks and dunes are not unique and not new and that the hardship is self-created.

 

Attorney Singer responded by reiterating that the builder did, in fact, go beyond the scope of the original Special Permit following the structural engineer’s recommendations but that the new plan will remedy that mistake and be better for the neighborhood and the environment than was the original plan. He also clarified that Section A(5) has historically been interpreted that the non-conforming area was what was limited to a 25% or less increase. The coastal dunes and beaches are not new but the FEMA regulations changing some of them to a Velocity Zone have changed the building rules within and around them creating conditions for a Variance.

 

Gil Stone of 15 Sea Street spoke of his desire to remedy the current problem and stated that he thought the new house will be much better than before.

 

Paul Doane asked Attorney Reid if he had a solution to propose. Attorney Reid stated that although his clients originally opposed the 2014 Special Permit  he wanted the house rebuilt on the same footprint as the original house and that if that were to happen, the applicants would not need any relief and could comply with the Harwich Building Code. Mr. Doane then asked Attorney Singer if the applicants would consider moving the entire project back from the private way in order to eliminate the need for a Variance. Attorney Singer replied that doing so would make the house so narrow as to be impractical.

 

John Burke asked if the house were to be built in the original footprint, would the new Velocity Zone requirements raise the house higher than the Harwich Building Code allows. Dan Croteau answered that the house on the plans would be 5’ higher if built on the original footprint and go above the height limit. Mr. Burke then suggested continuing the case in order for the opposing parties to have time to work out a solution.

 

At 9:35, the Chairman Carreiro called for a 5 minutes recess for the Attorneys to meet.

 

The meeting reconvened at 9:40.

 

Stu McCarthy of 2 and 9 Sea Street pleaded with the opposing parties to come to a solution, His wife, June asked the Campbells directly how they believed their view was going to change and if not, why continue to fight the project. Attorney Reid responded that the angle of the view would change. Kathleen Muller asked Attorney Reid to cite the bylaw that gave the Campbells a right to their view and Attorney Reid responded by saying that other neighbors had mentioned that the view wouldn’t change and he wanted to point out that it would.

 

Attorney Singer asked for a straw poll which Gary Carreiro provided with straw votes as follows:

 

Gary Carreiro was not against granting relief but prefers a continuance.

Paul Doane wanted a continuance.

John Burke would vote “yes” on a Special Permit and would not deny relief.

Dean Hederstedt would grant relief but was OK with a continuance.

Kathleen Muller preferred a continuance.

Joseph Campbell would grant relief.

 

Attorney Singer then requested a continuance until the next meeting.

 

Dean Hederstedt moved and Paul Doane seconded to grant the continuance with all voting in favor.

 

Paul Doane then moved and Dean Hederstedt seconded to approve the minutes of July 29, 2015 with all voting unanimously in favor.

 

At 9:56PM, Dean Hederstedt moved and John Burke seconded to adjourn the meeting. All voted unanimously in favor.

 

Approved   ________________________________             __________________

                      Gary Carreiro, Chair                                                Date