Town of Eastham MA - Zoning Board of Appeals Minutes 08/09/07

ZONING BOARD OF APPEALS

Members Present: Victoria Dalmas (Chairman), Roger Thurston (Clerk), Donald Intonti, Kathryn Sette, David Fleming (Alternate) and John Zazzaro (Alternate)

Members Absent: John Lennox (Vice Chairman)

Staff Present: Frank DeFelice (Building Inspector)

Chairman Victoria Dalmas called the meeting to order at 7:04 p.m.

New Hearing - Appeal of a Decision of the Building Inspector:

APPEAL Z#2007-09 - Hostelling International USA, seeks an Appeal of the Decision of the Building Inspector dated June 20, 2007 determining that lot reconfiguration forfeited grandfathered protections on the property located at 75 Goody Hallet Road, Map 20 Parcel 58.

Chairman appointed David Fleming to sit in place of absent member John Lennox. Appellant was advised and consented.

Attorney Myer Singer representing Hostelling International USA.

Attorney Duane Landreth representing abutters Mr. and Mrs. Freeman.

FINDINGS OF FACT:

1. This appeal concerns property currently listed on the Assessor’s records as Parcel 58 on Assessor’s Map 20 or informally as “LOT B” on Plan of Land dated June 19, 2000. The property address is 75 Goody Hallet Road, Eastham. The property shall hereinafter be referred to as the “Hostel lot”.

2. A representative of the Eastham Conservation Foundation, Inc. (the “Foundation”) was present and confirmed that the Foundation is the owner of the Hostel lot.

3. The Applicant, Hostelling International USA, dba American Youth Hostel, 218 Holland Street, Somerville, MA 02144 (the “Applicant” or the “Hostel”), represents that the Hostel rents the Hostel lot from the Foundation on a yearly basis.

4. The procedural history of this Appeal is as follows:

· The Eastham Building Inspector, in a letter dated March 27, 2007 to the Foundation, informed the Foundation that due to the reconfiguration of the Hostel lot in August of 2000, which reduced the Hostel lot by .41 acres, the lot became a smaller and different sized lot and, as such, forfeited any claim to grandfathered protection. The Building Inspector’s letter also stated that the continued operation of the hostel on the Hostel lot would require a special permit from the Zoning Board of Appeals, and ordered that the Hostel immediately refrain from any activity on the Hostel lot and to apply for the necessary permits.

· The Applicant and the Foundation, in an Application dated April 12, 2007, applied for a special permit to “[m]aintain operation of Youth Hostel that has operated on the site for more than 40 years.” In the said Application, the Applicant stated that there are eleven buildings on the Hostel lot of which there are nine habitable buildings (a main building and eight cabins). The Application was received by the Town of Eastham on April 13, 2007. The hearing for Applicant’s special permit application was scheduled on June 14, 2007.

· The attorney for the Applicant (the “Applicant’s Attorney”), in a letter dated June 5, 2007 to the Eastham Zoning Board of Appeals (the “ZBA”), informed the ZBA of his understanding that there would only be four members of the ZBA present during its scheduled hearing on June 14, 2007 and requested that the hearing of its Application for a special permit be rescheduled for a convenient future hearing before the full ZBA.

· Applicant’s Attorney, in a letter dated June 8, 2007 to the Eastham Building Inspector, stated his awareness of the Building Inspector’s letter dated March 27, 2007 in which the Building Inspector determined that the reconfiguration forfeited any claim to grandfathered protection, and further in relevant part that:

Without acknowledging whether or not your determination was correct as to the [Foundation] as the owner of the land, [Applicant] has been and is the tenant and sole occupant of the land shown as parcel 58 on Eastham Assessor’s Map, known as 75 Goody Hallet Road, Eastham, and has not changed its use of the land.

[Applicant] as the tenant of the above referenced property, and the sole party entitled to occupy said property, requests a determination by you that it, as tenant, can continue to use said property as a youth hostel and herewith applies for and requests that you issue an occupancy permit to it for that purpose. …

· Applicant’s Attorney, in a letter dated June 15, 2007 to the ZBA, agreed to extend the time by which the ZBA must hold its public hearing on the Application for a special permit dated July 12, 2007, and to extend the time by which a decision must be made on said Application to July 26, 2007.

· The Eastham Building Inspector, in a letter dated June 20, 2007 to Applicant’s Attorney (and made in response to the June 8, 2007 letter of Applicant’s Attorney), informed Applicant that due to the predecessor in title’s reconfiguration of the Hostel lot in August of 2000, which reduced the Hostel lot by .41 acres, the lot became a smaller and different sized lot and, as such, forfeited any claim to grandfathered protection. In the said letter, the Building Inspector also stated that the continued operation of the hostel on the Hostel lot would require a special permit/variance from the ZBA, and ordered that the Hostel immediately refrain from any activity on the Hostel lot and to apply for the necessary permits.

· Applicant’s Attorney, in a letter dated June 12, 2007 [sic] to the ZBA, which was received by the Town of Eastham on June 22, 2007, gave notice pursuant to Massachusetts General Laws Chapter 40A, Sections 8, 14 and 15, of Applicant’s appeal of the written decision of the Building Inspector dated June 20, 2007. In said letter, Applicant’s Attorney further stated the following as the basis for Applicant’s appeal:

The Hostel’s position is that even if the area of the lot on which the Hostel has operated has changed, the physical space or area of land the Hostel has historically used has not changed. Further, there has not been a substantial extension of the use nor has there been any change to provide for the use for a substantially different purpose, or for the same purpose in a substantially different manner, or to a substantially greater extent all as provided for in Massachusetts General Laws, Chapter 40A, Section 6.

· On June 22, 2007, the Town of Eastham also received Applicant’s Application to appeal the decision of the Building Inspector, which sets forth that the appeal is made pursuant to Section VI, Paragraph A of the Eastham Zoning By-laws. Section VI, Paragraph A provides as follows:

Any lawful building, or any lawful use of a building or premises, or part thereof, existing or lawfully begun at the time the Zoning By-Law was originally adopted in the area in which such building or use is located, may be continued, subject to the provisions of this section.

In its Application, the Applicant also set forth the following as the brief description of proposal:

Hostelling International USA, Eastern New England Council is appealing the Inspector of Building’s decision dated 6/20/07, that the Applicant has forfeited any claim to grandfathered protection. Hostelling International USA, Eastern New England Counsel has the right to continue operation of the Youth Hostel that has operated on the site for more than 40 years as a lawfully pre-existing non-conforming use under the Eastham Zoning By-laws and Massachusetts General Laws Chapter 40A Section 6.

· The Foundation, in a written Authorization executed on June 22, 2007, authorized Applicant’s Attorney to appeal the decision of the Building Inspector (set forth in the Building Inspector’s June 20, 2007 letter).

· Applicant’s Attorney, in a letter dated July 2, 2007 to the ZBA, stated Applicant’s understanding that its appeal of the Building Inspector’s decision of June 20, 2007 would not be heard by the ZBA until its meeting of August 9, 2007 and requested that the Application for a special permit be continued to the hearing of August 9, 2007 and that it be preceded by Applicant’s appeal of the Building Inspector’s decision of June 20, 2007.

· On July 12, 2007, the Applicant’s special permit application was heard in part by the ZBA and continued to its next hearing of August 9, 2007. Applicant’s Attorney consented to the said continuance.

5. From the Applicant’s participation in the aforesaid April 12, 2007 Application for a special permit, the ZBA concludes that the Applicant was aware of the March 27, 2007 Building Inspector’s decision to the Foundation. The ZBA finds that the Applicant failed to meet the statutory time limit to appeal the March 27, 2007 decision of the Eastham Building Inspector. Additionally, the ZBA finds that that the Foundation did not appeal the Eastham Building Inspector’s decision dated March 27, 2007, but consented to Applicant’s untimely appeal by written authorization executed June 22, 2007 as aforesaid.

6. The Applicant represents the following with respect to the Hostel lot:

The Applicant has operated a facility at the site without substantial change to the use for approximately 40 years, erecting seven (7) cabins in 1964. The original lot size was 2.83 acres, plus or minus.

· The youth hostel can accommodate up to forty-eight (48) per night. Limit of stay is fourteen (14) days. Cost of a one (1) night stay is between $20 to $30. Average occupancy is 59%. Owner of property receives $1.00 per year rental and there is no record of payment of real estate tax.

· The youth hostel has accommodated groups, such as Girl Scouts and student bike groups.

· Applicant was given a Well Permit in May of 2006 for a Dwelling. Applicant also presented reports of limited water testing.

7. The Applicant obtained a permit to operate a recreational camp from the Eastham Board of Health dated June 12, 2007, which expires on September 30, 2007. The Eastham Board of Health issued a permit dated June 12, 2007 permitting the youth hostel to operate as a camp.

8. The ZBA received several letters in support of the operation of the Hostel from both residents and non-residents. Three letters were received citing concerns, including the operation of buses to serve the facility, which is located in a quiet residential area, and a desire to not see any increase in use by the Hostel.

According to the letter of Jacquelin Duffek (the predecessor in title to the Hostel lot), in 1974, the Duffeks, purchased Lot A, the adjoining lot to the Hostel lot, from Herbert Nickerson. Subsequently, in 1979, the Duffeks bought the Hostel lot from Herbert Nickerson’s daughter, who was the owner of the Hostel at that time. The Hostel lot contained the main Hostel building, the Hostel bunk houses and the barn. After the purchase of the Hostel lot, the Duffeks entered into a lease with American Youth Hostels, Inc., which was the predecessor to Applicant for the continued use of the Hostel lot as a youth hostel. The lease did not include the use of the barn on the Hostel lot. In June 2000, the Duffeks reconfigured the Hostel lot and Lot A. The reconfiguration effectively removed the area of the land containing the barn to the newly created Lot A. After the reconfiguration, the Duffeks gave the Hostel lot to the Foundation as a charitable gift. In making the charitable donation, the Duffek’s intention was that the Foundation would continue the use of the Hostel lot as a youth hostel as long as possible.

9. The ZBA finds that the reconfiguration resulted in the reduction of the Hostel lot from 2.83 acres to its current size of 2.419 acres and a corresponding increase to Lot A from 22, 230 square feet to its current size of 40,050 square feet (.919 acres).

10. The ZBA finds that due to the lot reconfiguration the current zoning regulation established in 1988 is applicable. The Hostel lot, if subdivided, could accommodate two residential lots under applicable Eastham Zoning By-laws.

11. The ZBA finds that the youth hostel facility constitutes a camp under the Eastham Zoning By-laws. Section III of the Eastham Zoning By-laws sets forth the following definition of a “camp”:

An area of land consisting of at least four (4) acres, exclusive of wetlands, upon which is located, or upon which it is intended to locate, the facilities required to operate upon a seasonal basis the continuing supervised recreational, health, educational religious or athletic program, or a combination thereof.

There currently are eleven (11) structures located on the Hostel lot: one (1) Lodge/Dining Area, eight (8) Bunk Houses, and two (2) Sheds. The bunk houses do not have toilet facilities; toilet facilities are located in the main hostel building, i.e., the Lodge/Dining Area, for use by individuals staying at the hostel. The main hostel building has kitchen facilities, which are available for use by those staying at the hostel. There is no restaurant on the premises. The property is used seasonally for recreational purposes. The youth hostel has staff on premises who supervise the operation of the youth hostel.

12. The ZBA finds that during the period between 1974 and 2000 the property on which the Hostel operated was never configured to the minimum of four (4) acres. The reconfiguration of the lot resulted in a further reduction of the Hostel lot from 2.83 acres to its current size of 2.419 acres.

13. The Hostel lot is located in Zoning District “A” Residential. The operation of a camp is prohibited in District A under Eastham By-law Section VIII.

14. The record includes a letter dated July 12, 2007 from Eastham Town Counsel, which provides as follows in relevant part:

[O]nce a pre-existing nonconforming, but protected, undersized parcel is further diminished by conveyance of any part of the parcel, it ordinarily irreversibly loses its protected status. Unless there is a specific provision in the applicable zoning bylaw that allows such a decrease in area, the diminished parcel is in violation of the zoning bylaw and the use of the parcel also violates zoning.

15. The ZBA finds that the year 2000 reconfiguration of the Hostel lot by the Foundation’s predecessor in title rendered the Applicant’s use of the Hostel lot unlawful given that under the applicable Eastham Zoning By-laws the lawfulness of the use, a camp, is dependent on certain dimensional requirements. The lot came into existence in June of 2000 given the reconfiguration of the lot line. As a new lot, which is no longer afforded grandfathered protection, the use of the Hostel lot as a camp is unlawful given the dimensional nonconformity and, therefore, Eastham Zoning By-law Section VI.A. (cited above) and Massachusetts General Laws 40A Section 6 have no application.

A MOTION was made by Kathryn Sette and Seconded by Donald Intonti to accept the Findings of Fact. The VOTE: 5-0 IN FAVOR – Victoria Dalmas, Donald Intonti, Kathryn Sette, Roger Thurston, David Fleming.

Based on the Findings of Fact, a MOTION was made by Donald Intonti and Seconded by Kathryn Sette to uphold the Eastham Building Inspector’s Decision of June 20, 2007 determining that the lot reconfiguration forfeited grandfathered protections on the property located at Map 20 Parcel 58, 75 Goody Hallet Road, Eastham. The VOTE: 5-0 IN FAVOR - Donald Intonti, Kathryn Sette, Roger Thurston, Victoria Dalmas, David Fleming.

A MOTION was made by Kathryn Sette and Seconded by Roger Thurston that the Hostel cease all operation on the Hostel lot by September 15, 2007. The VOTE: 5-0 IN FAVOR – Donald Intonti, Kathryn Sette, Roger Thurston, Victoria Dalmas, David Fleming.

Continued Hearing - Special Permit

APPEAL Z#2007-07 - Hostelling International USA - Applicant seeks a Special Permit to continue the operation of a Youth Hostel on property located at 75 Goody Hallet Road - Map 20 Parcel 58.

Chairman appointed David Fleming to sit in place of absent member John Lennox with Applicant’s consent.

Attorney Myer Singer representing Hostelling International USA.

Attorney Duane Landreth representing abutters Mr. and Mrs. Freeman.

FINDINGS OF FACT:

1. This Application concerns property currently listed on the Assessor’s records as Parcel 58 on Assessor’s Map 20 or informally as “LOT B” on Plan of Land dated June 19, 2000. The property address is 75 Goody Hallet Road, Eastham. The property shall hereinafter be referred to as the “Hostel lot”.

2. A representative of the Eastham Conservation Foundation, Inc. (the “Foundation”) was present and confirmed that the Foundation is the owner of the Hostel lot.

4. The procedural history of this Application is as follows:

· The Applicant and the Foundation, in an Application dated April 12, 2007, applied for a special permit to “[m]aintain operation of Youth Hostel that has operated on the site for more than 40 years.” In the said Application, the Applicants stated that there are eleven buildings on the Hostel lot of which there are nine habitable buildings (a main building and eight cabins). The Application was received by the Town of Eastham on April 13, 2007. The hearing for special permit application was scheduled on June 14, 2007.

· The attorney for the Applicant, Hostelling International USA (the “Applicant’s Attorney”), in a letter dated June 5, 2007 to the Eastham Zoning Board of Appeals (the “ZBA”), informed the ZBA of his understanding that there would only be four members of the ZBA present during its scheduled hearing on June 14, 2007 and requested that the hearing of its Application for a special permit be rescheduled for a convenient future hearing before the full ZBA.

· Applicant’s Attorney, in a letter dated July 2, 2007 to the ZBA, stated Applicant’s understanding that its separate appeal of the Building Inspector’s decision of June 20, 2007 would not be heard by the ZBA until its meeting of August 9, 2007 and requested that the Application for a special permit be continued to the hearing of August 9, 2007 and that it be preceded by Applicant’s appeal of the Building Inspector’s decision of June 20, 2007.

5. The Applicant represents the following with respect to the Hostel lot:

· The Applicant has operated a facility at the site without substantial change to the use for approximately 40 years, erecting seven (7) cabins in 1964. The original lot size was 2.83 acres, plus or minus.

· Applicant was given a Well Permit in May of 2006 for a Dwelling. Applicant also presented reports of limited water testing.

· Applicant presented a Letter of Consent in 2006 from the Department of Environmental Protection.

· The youth hostel has accommodated groups, such as Girl Scouts and student bike groups.

6. The Applicant obtained a permit to operate a recreational camp from the Eastham Board of Health dated June 12, 2007, which expires on September 30, 2007. The Eastham Board of Health issued a permit dated June 12, 2007 permitting the youth hostel to operate as a camp.

7. The ZBA received several letters in support of the operation of the Hostel from both residents and non-residents. Three letters were received citing concerns, including the operation of buses to serve the facility, which is located in a quiet residential area, and a desire to not see any increase in use by the Hostel.

8. The ZBA finds that the reconfiguration resulted in the reduction of the Hostel lot from 2.83 acres to its current size of 2.419 acres and a corresponding increase to Lot A from 22, 230 square feet to its current size of 40,050 square feet (.919 acres). During the period between 1974 and 2000 the property on which the Hostel operated was never configured to the minimum of four (4) acres.

9. The ZBA finds that due to the lot reconfiguration the current zoning regulation established in 1988 is applicable. The Hostel lot, if subdivided, could accommodate two residential lots under applicable Eastham Zoning By-laws.

10. The ZBA finds that the youth hostel facility constitutes a camp under the Eastham Zoning By-laws. Section III of the Eastham Zoning By-laws sets forth the following definition of a “camp”:

11. The Hostel lot is located in Zoning District “A” Residential. The operation of a camp is prohibited in District A under Eastham By-law Section VIII.

12. The record includes a letter dated July 12, 2007 from Eastham Town Counsel, which provides as follows in relevant part:

I have reviewed the Zoning By-law, and see no special permit or other provision that would allow for the “cure’ of an illegality created by the alteration of the lot lines of a pre-existing nonconforming lot. The only lot that enjoys the protection afforded to pre-existing nonconforming lots is the precise lot as it existed at the time the Zoning By-law was amended to render the lot nonconforming. For that reason, it is my opinion that there is no available special permit to allow the Parcel in its diminished size to be treated as not in violation of the dimensional requirements of the Bylaw.

A MOTION was made by Kathryn Sette and Seconded by David Fleming to accept the Findings of Fact. The VOTE: 5-0 IN FAVOR – Donald Intonti, Kathryn Sette, Roger Thurston, Victoria Dalmas, David Fleming.

Based on the Findings of Fact, a MOTION was made by Kathryn Sette and Seconded by Donald Intonti to grant a Special Permit to continue operation of a youth hostel on the property located at 75 Goody Hallet Road, Map 20 Lot 58 under the following Conditions:

1. Operation will be limited as seasonal.

2. Bus traffic will be prohibited from Goody Hallet Road.

3. A fence will be erected on the perimeter of the property.

4. The Hostel will continue operation in its present form and any violation of these

conditions will be subject to revocation of this permit.

The VOTE: 3-2 OPPOSED - Against: Kathryn Sette, Roger Thurston, Victoria Dalmas / For: David Fleming, Donald Intonti.

1. The ZBA finds that there is no special permit provision in the Eastham By-laws that gives the ZBA authority to issue a special permit authorizing Applicant’s continued use of the Hostel lot as a youth hostel given the dimensional nonconformity.

The lot came into existence in June of 2000 given the reconfiguration of the lot line. As a new lot, which is no longer afforded grandfathered protection, the use of the Hostel lot as a camp is unlawful given the dimensional nonconformity and, therefore, Eastham Zoning By-law Section VI.A. and Massachusetts General Laws 40A Section 6 have no application.

2. If the ZBA were to assume that it had authority to grant a special permit in this matter under its general special permit powers, it would nevertheless find that the dimensional nonconformity that was created by the 2000 lot line reconfiguration is not in harmony with the general purpose and intent of the Eastham Zoning Bylaws. The ZBA finds that a variance is the appropriate procedure in this matter.

Approval of Minutes:

A Motion was made by Kathryn Sette and Seconded by David Fleming to accept the minutes of the July 12, 2007 Meeting. The VOTE: 5-0 – David Fleming, Donald Intonti, Kathryn Sette, Roger Thurston, Victoria Dalmas.

A Motion to adjourn was made by Roger Thurston and Seconded by David Fleming. The VOTE: 5-0 IN FAVOR – David Fleming, Donald Intonti, Kathryn Sette, Roger Thurston, Victoria Dalmas.

The meeting was adjourned at 10:25 P.M.

Respectfully submitted,

Roger Thurston, Clerk

Eastham Zoning Board of Appeals