Zoning Board of Appeals Meeting

Town of Harwich

ZONING BOARD OF APPEALS

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

PUBLIC HEARING

Wednesday, September 30, 2015 at 700 p.m.

Griffin Meeting Room, Harwich Town Hall

MINUTES

On Wednesday, September 30, 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, 732 Main Street to hear the following cases.

MEMBERS PRESENT: Franco Previd, Gary Carreiro, David Ryer, Paul Doane, Kathleen Muller, Joseph Campbell and John Burke.

7:03 PM Call to Order by Chair Gary Carreiro

MEMBERS PRESENT: Franco Previd, Gary Carreiro, David Ryer, Paul Doane, Kathleen Muller, Joseph Campbell and John Burke. A failed attempt was made to contact Dean Hederstedt to join the meeting via telephone conference.

CONTINUED from 8/26/15: Case #2015-35

Douglas Godshall and Cristy Godshall, owners, c/o Andrew L. Singer, Esq. 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.

Members voting on this case were Misters Doane, Burke, Carreiro and Campbell and Ms. Muller.

Mr. Burke noted the volume of correspondence from the neighbors of 2A Sea Street which became a part of the file.

Presenting for the applicants was Andrew Singer, Esq., along with Douglas Godshall. Mr. Singer introduced the project Engineer, Dan Croteau of Moran Engineering, Inc., Dan Sylver Project Designer of Chatham Drafting & Design Services and Harry Ellis, Builder.

After discussion and approval by Attorney Andrew Singer, Joseph Campbell was designated as a replacement voting Board Member for the absent Dean Hederstedt.

This case was continued from 8/26/15 when the Applicant’s attorney, Andrew Singer explained that in an attempt to shore up structural building components, the builder had gone beyond the scope of demolition allowed under the original Special Permit granted by the Board in October of 2014. Because of the change in FEMA regulations since that date placing the Godshall’s house in the “A” Velocity Zone, the originally submitted plans would not be allowed requiring a change in plans. (See discussion of details in the Zoning Board of Appeals Minutes for 8/26/15).

Mr. Singer noted that since the last ZBA meeting, there were discussions and a meeting between the attorneys representing both the Godshalls and the Campbells with no resolution. He added that Mr. Godshall met with the Campbells without attorneys present and again, no resolution was reached. Mr. Godshall had contacted each of his neighbors giving them details of the 2 options presently available to the owners of 2A Sea Street asking the neighbors to register their opinions. Nearly all of those contacted voiced approval of the option which would bring the Godshall’s house further away from the beach and out of the “A” Velocity Zone but which would require a variance to the front property line of the private way, also owned by the Godshalls. Applicants were looking for approval of the same plan brought before the Board at the August meeting. Attorney Singer offered plan drawings which he hoped would clarify some of the questions the Board had previously had. The originally approved plan would have had the house height at 29.65’. The newer plan has the height of the house at 29.4’. The approved plan had the house length at 65.3’ and the newer plan has the length of the house at 64.9’. Applicants are looking for a Special Permit to alter a pre-existing, non-conforming house and a technical dimensional variance from the required setback to the private way owned by the Godshalls.

When referring to the criteria for granting a variance, Attorney Singer spoke of the unique conditions created by the property now being in a velocity zone on a coastal beach with dunes on at least one side and abutting wetland areas. If built where originally approved, the house would now have to be lifted requiring a height variance or impracticable ceiling heights of 7’ presenting a substantial hardship to the Godshalls. The side and rear setbacks could be met by moving the house into the dunes but that would disturb environmentally sensitive areas and bring the house closer to the neighbors on that side.

Attorney Singer researched other variance cases where Appeals Courts supported dimensional variances with relatively minor hardships. He cited the MCLE Massachusetts Zoning Manual regarding hardships for dimensional variances. He said that according to 9.3.2G, dimensional variances may be granted when the following criteria are met:

1) if granting the variance does not change the character of the neighborhood nor presented an inconsistent use; 2) there is no detriment to the public good; and 3) it does not derogate from the intent or purpose of the bylaw. The proposed new house will not change the character of the neighborhood, will improve the setback from the larger house to the west and allow for significant separation from abutting homes. It will not change the character of the zoning district, not be an inconsistent use and will be not be detrimental to the public good. The building and site coverage will be lower than the Town Code requires and the footprint of the house will be smaller. The Godshalls own the land on 3 sides of the private way which they also own. Moving closer to the end of that private way would not derogate from the intent of the bylaw.

Attorney Singer noted that the environmental benefits are also great as the house will be moved out of the Velocity Zone to the “A” Zone and raised to comply with FEMA regulations. Attorney Singer added that there would be no detriment to the public good nor harm to the neighbors. Those neighbors who own numbers 2 and 9, 28, 15, 43, 8 and 3 Sea Street support the current plan as do the neighbors from 40 and 11 Pilgrim Road as well as 5 Sail Loft Rd. Attorney Singer also rebuffed the notion from Attorney Reid that the hardship was self created. Neither the Godshalls nor their builder had any intent to bypass the law. He said that unusual circumstances brought us here. He continued to argue that even if it were a self-created hardship, Lamb v. ZBA of Taunton, a 2010 case, held that even the existence of a self-created hardship does not disqualify the applicant from requesting a variance under Chapter 40A §10. He requested that the Board grant the Special Permit and technical Variance to the paper way owned by the Godshalls.

Mr. Doane asked if there were any changes to the plan last submitted and Attorney Singer answered that there were not.

Judy Rielly, a neighbor living at 5 Sail Loft Road spoke about how tall her sons are and that the 7’ ceiling height limitation if the house were left in the velocity zone would be a serious problem for anyone over 6’ tall. She added that moving the house closer to the private way and away from the sensitive coastal area was more practical and environmentally more sound.

David Reid, attorney for the Campbells restated the position of his clients that the Board should not grant the requested variance because the Godshalls could still build where originally approved and that the shorter ceiling height was not a hardship. His belief was that none of the criteria was met for granting a variance.

Francine and Mark Ryan of 5 Pilgrim Road both spoke of their opposition to the proposed move of the Godshall’s house away from the coast fearing that there would be drainage issues and that the views from their house would be affected. Mrs. Ryan asked that her letter be read into the record which done.

Andrew Singer answered accusations by the Campbells and their attorney that the Godshalls had been “cavalier” and that they were asking the Board to bend the rules for them. He said that when certain criteria are met, the Zoning Board of Appeals can offer relief from just the type of circumstances involved in this case. The topography and soil conditions are unique because the FEMA regulations have changed since the start of the project. He again asked that the Board grant the Special Permit and the Variance.

Mr. Doane expressed his disappointment that the Godshalls and the Campbells could not have come to compromised solution and asked for clarification of the ownership of the land surrounding the private way. He also asked Mr. Godshall what he thought the Campbells were resistant to and Mr. Godshall said that when he spoke with them, the Campbells told him they were concerned about a change in the view from their kitchen window. Mr. Doane expressed that he thought that the revised proposal was a preferable approach but also said he wasn’t sure that the topography and soil conditions were unique enough.

Mr. Previd asked if the view from the Campbell’s kitchen window was the only one affected and also if the original location of the Godshall’s house was protruding out onto the beach. Andrew Singer answered in the affirmative.

Mr. Burke said that he felt that the Godshalls had met all of the requirements for the Board to grant the Special Permit and also noted that minor dimensional variances do stand up better in court. He thought that the private way jutting into the driveway of the property was a unique feature.

Mr. Ryer had no comments and Mr. Joseph Campbell said that he would vote in favor of the requested relief.

Kathleen Muller asked about the distances from the Godshall’s house to the complaining abutters’ houses and was told that the Campbell’s house is approximately 400’ away and the Ryan’s house is approximately 95’ away. She also asked if both of the proposed options were objectionable to the Campbells and Mr. Singer said he believed so. She said that she believed that there was sufficient legal reasoning for the Board to grant both the Special Permit and the Variance.

Gary Carreiro stated that the job of the Zoning Board of Appeals is to decide each case based upon the presented evidence and not refer to what a future court may or may not decide.

A motion was made by John Burke to close discussion and seconded by Joe Campbell with unanimous approval (5-0). A motion was then made by Mr. Burke and seconded by Mr. Campbell to grant the Special Permit for the reconstruction of the house in accordance with the plans submitted as the Board finds that it is not substantially more detrimental to the neighborhood than the existing structure and that there is no derogation from the intent of the bylaws; and to grant the Variance to the front setback to a distance of no less than 12’ from the private way as shown on the plan submitted because failure to grant the Variance would pose a substantial hardship to the applicant, there was no substantial detriment to the neighborhood and no derogation from the intent of the bylaw. The Board voted unanimously to approve the motion (5-0).

Gary Carreiro asked for a 5 minute recess at 8:06.

At 8:11 PM the meeting was recalled to order.

Gregory, Kimberly and Jennifer Manocherian, et al, owners, c/o William D. Crowell, Esq. have applied for a Special Permit to demolish and rebuild an existing 20’ x 35’ boat house. The application is pursuant to the Code of the Town of Harwich §325 Table 2, Area Regulations and §325-54. A.(5), §325-54. A.(7)(b) as set forth in MGL Chapter 40A Section 6. The property is located at 35 Snow Inn Road, Map 8, Parcel F-1 in the RL Zoning District.

John Burke noted that there were comments from the Historical Commission regarding the possible need for the filing of a Notice of Intent.

Members voting on this case were Misters Previd, Burke, Carreiro, Ryer and Ms. Muller.

Presenting for the applicants was Attorney William Crowell along with the builder and project manager, Kurt Hedmark.  Attorney Crowell spoke of the deteriorating condition of the boathouse and its proximity to the area that was once Thompson’s Clam Bar. The owners are hoping to demolish just that portion of the building and replace it on the same footprint and in the same style. He asked for the Board to grant the Special Permit on the grounds that the existing boathouse is attached to an accessory building to a residential structure. If the Board finds that it is not a residential structure, then he requested a variance. He said the project would not create any new non-conformity. The westerly side of the structure is 1’ from the front lot line and the easterly side is 2’ from the lot line. There is a deck on the 2^nd floor of the building. There would be no substantial detriment to the neighborhood and no increase in noise, traffic or congestion. Attorney Crowell asked for the Board to grant the Special Permit.

There was no public discussion.

Franco Previd asked for clarification on the height and was told by the builder that it will be 13.5’. John Burke asked if there is a deck on the current building and was told that there is. He said he was struggling with a residential designation of the boathouse and believed a variance was in order. David Ryer also questioned the residential nature of the boathouse. Kathleen Muller asked for a legend showing the current zoning dimensions. Joe Campbell asked for details on the proposed septic upgrades and then Gary Carreiro asked Attorney Crowell to present the argument for a variance.

Attorney Crowell stated that there was a hardship arising out of the uniquely shaped lot size and topography given that the boathouse juts out over the water and the owner does not want the deteriorating building to fall into the harbor. That would also present safety issues. He noted that the owners had been before the Waterways Committee, the Board of Health and the Conservation Commission. He said there would be no substantial detriment to the public good and no derogation from the intent of the bylaw.

David Ryer said he believed that the requirements for granting a variance were met and John Burke said that he also supported a variance and that he thought that this was a case of a minor dimensional variance with no change in the character of the building. Although David Ryer wanted a condition that the building remain a boathouse, Attorney Crowell said that there are other means of enforcing use issues and that the family does use the boathouse for residential purposes in season. Franco Previd asked if there would be any demolition restrictions and was told the demo would be done by hand.

David Ryer made a motion and John Burke seconded to close discussion. All voted in favor (5-0).   Mr. Ryer then moved and Mr. Burke seconded to grant the dimensional variance according to the plans submitted. To not grant the variance would present a substantial hardship to the applicant. There is no harm to the public and no derogation from the intent of the bylaw. The following conditions apply:   1) The reconstructed portion of the building is to remain a boathouse accessory to a residential structure; and 2) the applicant must conform to all Town requirements regarding the septic installation. All voted in favor (5-0).

Colin R. Fuller and Robin Fuller, owners, c/o William D. Crowell, Esq. have applied for a Variance to construct a 12’ x 18’ single car garage on the SE corner of their property. The application is pursuant to the Code of the Town of Harwich §325 Table 2, Area Regulations and §325-52, as set forth in MGL Chapter 40A Section 10. The property is located at 26 Kevin Road, Map 81, Parcel A32 in the R-R Zoning District.

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

John Burke read for the record the names of neighbors who had sent supportive letters to the Board regarding this case (Joanne Castellano of 15 Wallace R., David Connell of 22 Elizabeth Rd., Bill Hettrick of 7 Wallace Rd., Pasqua Hazel of 11 Marion Rd, Cindy Kaveney of 11 Wallace Rd., and Robert Russell of 3 Marion Rd.)

Presenting for the applicants was Attorney William Crowell with the owner, Dr. Fuller and his wife, Robin along with the builder, Robert Stello and the engineer, Dan Croteau of Moran Engineering. Attorney Crowell reminded the Board that this case had been before them in June. He retold the history of the residential development on the south side of Hinckley’s Pond before roadways were required to be finished. The resulting dirt road in front of the Fuller’s property is not a Town road and is only sparsely traveled by the 2 residents to the north of the Fullers and by pedestrians going to the beach area. He offered the site plan by Moran Engineering revised on 8/18/15 showing the existing gas line between the proposed garage and the dwelling. The Fullers have scaled down the proposed garage with no dormer and no 2^nd floor. Attorney Crowell also offered photos showing different angles of the view from the traveled road through a patch of trees to the proposed location of the garage.

Paul Doane asked if the trees in the photo were actually in the existing right of way and was told they were. Bob Stello added that he believes none of the trees need to come down to build the garage.

Attorney Crowell said that a garage is a reasonable extension of use of a single family dwelling. The hardship arises out of the fact that the location of the wetlands, the location of the septic as dictated by the Board of Health and the Conservation Commission and the location of the gas line limit the possible location of the garage to the location proposed. The unique shape of the lot includes the curve of Kevin Road and the unique topography is that the lot drops off toward the pond and a protected vegetative wetland area. The actual edge of the traveled dirt road is between 24’-27’ from the proposed location of the garage. He said that relief can be granted with no substantial detriment to the neighborhood as evidenced by the support of the abutters, no derogation from the intent or purpose of the bylaw, no substantial harm to the public good as there are no sight line issues.

Dan Croteau spoke about how the property originally had a 2 bedroom cottage on it before the Fullers built a 1 bedroom seasonal home on pilings. The Town shuts off the water during the off season. The proposed garage would be about 29’ from the traveled road. The project meets site and building coverage requirements. The owners originally thought they could use the area under the house for storage but once the house was built, they realized that the limited height of 4’ made that difficult. There is no basement. He noted that the owners live in Nevada and would have to store their boat and truck out in the open during the winter potentially causing environmental problems with corrosion and leaking fuel.

Dr. Collin Fuller spoke about how he is from Massachusetts, having spent many summers on the Cape. He and his wife originally had a home on the barrier beach but that was washed away in the no-name storm of 2007 and later a house on the outer beach but the break-through caused them to have to move that house. They decided on the property at Kevin Road and then worked closely with the Board of Health and the Conservation Commission in order to build their 1 bedroom seasonal home. He said that he believed that the requested variance is within the spirit of the law and is not harmful to the public good.

Bob Stello, the Project Builder, said the Fullers had worked closely with their neighbors to make sure that they would be in support of the Fuller’s need for storage. He said the neighbors prefer the proposed garage to a shed.

Paul Doane said that he originally thought that the requested variance to 8’ from the front property line was too substantial but now realizes that the garafge will sit about 25’ from the traveled way and would be in compliance with the spirit of the law.

David Ryer asked if the tight tank required by the Board of Health requires regular pumping and the owner replied that it did. Mr. Ryer thought that qualified as a unique feature of the property.

Kathleen Muller said that it appears the road is clearly a minimally traveled road and said she was in favor of granting the variance.

Gary Carreiro said that the positive input from the neighbors meant that there was no harm to the public.

John Burke moved and Paul Doane seconded to close discussion. All voted in favor (5-0). David Ryer then moved and John Burke seconded to grant the Variance to construct a 12’ x 18’ single car garage according to the plans submitted because a literal enforcement of the provision of the applicable by-law would cause a substantial hardship to the applicants. The Board agreed that there was a unique shape and topography of the lot, that there would be no substantial harm to the neighborhood nor any substantial derogation from the intent and purpose of the bylaw. The Board voted unanimously in favor (5-0).

Paul Doane moved and John Burke seconded to accept the minutes from the August 26, 2015 meeting. The Board voted unanimously in favor (5-0).

Gary Carreiro asked the Board Secretary to attempt to change the meeting date and time for him to present a report to the Board of Selectmen.

At 940 PM, David Ryer moved and Paul Doane seconded to adjourn the meeting. The Board voted unanimously in favor.

Authorized Posting Officer:  Shelagh Delaney, sdelaney@town.harwich.ma.us

Board of Appeals Recording Clerk