ZONING BOARD OF APPEALS
NOVEMBER 8, 2007
MINUTES
Members Present: Victoria Dalmas (Chairman), John Lennox (Vice Chairman), Roger Thurston (Clerk), Kathryn Sette, Donald Intonti, David Fleming (sitting as Alternate).
Members Absent: John Zazzaro.
Staff Present: Michael Ferreira/Assistant Town Administrator, Frank DeFelice/Building Inspector and Melody Gulow/Appeals Clerk.
Chairman Victoria Dalmas called the meeting to order at 7:00 PM.
Special Permit:
APPEAL #Z2007-13 - Mark Powers and Michael McNamara, 70 & 76 Old State Highway, Map 22, Parcel 09 and 10, seeks a Special Permit pursuant to Sections V, VI, IX, X, XIII & XIV Eastham Zoning By-Laws to hold weddings and catered functions on the subject property.
A MOTION was made by Roger Thurston and Seconded by John Lennox to refuse to hear Appeal Z2007-13 since the Applicant failed to meet the requirements of M.G.L. c.40A, Section 16. The VOTE: 5-0 IN FAVOR – Kathryn Sette, Donald Intonti, John Lennox, Roger Thurston, and Victoria Dalmas. OPPOSED: NONE.
Continued - Modification to Comprehensive Permit:
APPEAL #Z2007-11 - Southside Realty Trust, John McShane, Trustee, Brackett Landing Comprehensive Permit, Map 08, Parcels 191E, 191F, 191G, seeks a minor modification of the Comprehensive Permit issued under the provisions of M.G.L. c.40B, Sections 20-23, May 2005 Eastham Zoning Board of Appeal No. Z2005-04 for 40 units of housing on Brackett Road. The request is to allow conversion of one moderately affordable unit to a market rate unit.
Kathryn Sette, not in attendance at the last meeting, recused herself.
Mr. McShane agreed to have the Hearing with only four members voting.
FINDINGS OF FACT:
1. Property is located on Map 08, Parcels 191E, 191F and 191G in the Town of Eastham.
2. Applicant wishes to convert a moderately priced unit to a “market” priced unit.
3. The “moderate” priced unit has been advertised at $265,000.
4. Applicant wishes to market the unit at $329,000.
Applicant has presented a summary of sales progress.
The Zoning Board of Appeals for the Town of Eastham granted a Comprehensive Permit to develop 40 units of housing in accordance with M.G.L. c.40B on property located off Brackett Road.
The permit called for construction of five (5) so called “moderate income” units.
Two moderate income units have been purchased, one is expected to transfer early in 2008, one has yet to be constructed (being a portion of the site which has a cloud on the title) and one is complete, but a qualified buyer has not been able to be found despite more than nine (9) months of marketing.
Changes in market conditions since the time these moderate income units were proposed, have made these restricted sale units less desirable.
10. The conversion of the completed moderate income unit having an address of 8 Stellwagen will be sold at the market price of $329,000.
11. The sale of that unit at the higher price $329,000 vs. $265,000 will not result in the Applicant exceeding the allowable 20% profit permitted under the law and as a limited dividend entity.
A MOTION was made by David Fleming and Seconded by John Lennox to accept the Findings of Fact. The VOTE: 4-0 IN FAVOR – John Lennox, David Fleming, Roger Thurston and Victoria Dalmas. OPPOSED: None.
DECISION:
Based on the Findings of Fact, a MOTION was made by John Lennox and Seconded by Roger Thurston and so approved by the Board to grant the applicant permission to modify the 40B Comprehensive Permit to convert the unit at 8 Stellwagen to a “market priced” unit.
The VOTE: 4-0 IN FAVOR - John Lennox, David Fleming, Roger Thurston, Victoria Dalmas. OPPOSED: None.
Modification of Zoning Board of Appeals Decision in Appeal No. Z2007-09
APPEAL #Z2007-12 - Hostelling International USA, Eastern New England Council, Eastham Conservation Foundation, Inc., Map 20, Parcel 58 at 75 Goody Hallet Road. Applicant has appealed the Zoning Board of Appeals decision in Appeal No. Z2007-09 to the Massachusetts Land Court. The Hostel requests the Zoning Board of Appeals defer the application of that portion of the decision that requires “that the Hostel is to cease all operation on the Hostel lot by September 15, 2007" while the Court Appeal is pending.
Applicant represented by Attorney Myer R. Singer. Deborah S. Ruhe, Executive Director, Hostelling International USA in attendance.
FINDINGS OF FACT:
Applicant requests an amendment to the decision of the Eastham Zoning Board of Appeals in August of 2007 (Appeal No. Z2007-09) to defer the order to cease operations on the property on September 15, 2007.
Applicant has appealed the decision of the Eastham Zoning Board of Appeals Appeal No. Z2007-09 to the Massachusetts Land Court.
Applicant states it will withdraw the Land Court Appeal if the Town of Eastham passes a Zoning By-Law permitting the Hostel to continue operations at its present site.
Applicant would agree to continued operations with permission of the Eastham Zoning Board of Appeals until September 30, 2008.
Applicant bases this request to maintain operations pending a decision on this case so that she may take advance bookings for the next succeeding season.
Substantial public comment was presented in favor as well as opposed to the decision to amend the cease and desist order and to allow an extension of time to operate.
Approximately 35 persons were present in the audience.
The Eastham Zoning Board of Appeals received correspondence and a petition in favor of continued operation of the Hostel.
Representation was made that a proposed change to the Eastham Zoning By-Laws permitting the Hostel to continue operations at the site would be presented at the next annual Town Meeting.
A MOTION was made by Donald Intonti and Seconded by Kathryn Sette to accept the findings of Fact. The VOTE: 5-0 IN FAVOR - Kathryn Sette, Donald Intonti, John Lennox, Roger Thurston, Victoria Dalmas. OPPOSED: None.
DECISION:
A MOTION was made by John Lennox and Seconded by Donald Intonti to modify the Eastham Zoning Board of Appeals Appeal No. Z2007-09 decision which required the Hostel to cease operations by September 15, 2007 by extending that date to September 30, 2008 with the following conditions:
CONDITIONS:
The operation is to be seasonal between May 31st to September 30th.
Bus traffic will be prohibited from Goody Hallet Road.
A fence will be erected on the perimeter of the property.
The Hostel will continue in operation in its present form and any violation of these conditions will be subject to the revocation of this permit.
The VOTE: IN FAVOR - Donald Intonti, John Lennox. OPPOSED: Kathryn Sette, Roger Thurston, Victoria Dalmas. MOTION FAILS 3-2.
Grounds for Denial:
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. (Paragraph No. 15 of Appeal Z2007-09)
The applicant failed to provide sufficient basis to require an amendment to the order to cease operations by September 15, 2007.
Approval of Minutes:
A MOTION was made by John Lennox and Seconded by David Fleming to accept the Minutes of the October 11, 2007 Eastham Zoning Board of Appeals Meeting as written. Kathryn Sette recused herself. The VOTE: 4-0 IN FAVOR - John Lennox, David Fleming, Roger Thurston and Victoria Dalmas.
Adjournment:
A MOTION to adjourn was made by Roger Thurston and Seconded by Donald Intonti. The VOTE: 5-0 IN FAVOR – Katheryn Sette, Donald Intonti, John Lennox, Roger Thurston, and Victoria Dalmas.
The meeting was adjourned at 8:53 PM.
Respectfully submitted,
Roger Thurston, Clerk
Eastham Zoning Board of Appeals
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