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[Music] Okay. Welcome to the zoning board of appeals. Please silence cell phones and note that this meeting is being taped by FCTV. Um, any person Oh, wait. The zoning board of appeals is charged with
applying the state zoning statutes as well as the town zoning bylaws and reviewing and voting on each application. All decisions are made through the public hearing process. Our goal is to hear testimony from the applicants and the public and to allow a full and fair discussion of the project
prior to closing in the hearing process and reaching a decision. Number one, to begin each hearing, the clerk will read the public announcement for the hearing and read pertinent information from the file. Two, the applicant or the applicant's representative will then have 15 minutes to make a presentation.
Time may be extended by the vote by the a vote of the board. Three, the board will then question the applicant. And four, the public will be invited to comment. Comments will be limited to two minutes and be strictly related to the to the proposal. All members of the public wishing to speak should wait to
be recognized by the chair and should come to the podium. State your name and address for the record. Speak into the mic and it will not amplify your voice and record audio for the FCTV viewers. If there's any private party recording this, you you need to ask
permission if there's anyone. And then I'll introduce my board members. On the far right is Mark Fineran. His left is Scott Peter Peterson. To my right is Frank Duffy, the clerk. My name is Suzanne Murphy, chair. To my left is James Morse, vice chair. Tony Patui,
associate. Nick Haney, associate. And we have Noren Stockman, zoning administrator, and Ashley Dlo, office assistant. And we if we have a a time right now, if anyone has a public statement about something not on our agenda, you're welcome to come up to the podium. We will not comment, but you're
welcome to come up. Anybody? We take complaints, too. We can be a complaint department. All right. So, we'll start off. Um, the first hearing is a continuation.
006-25 Smith's 51 Thomas Lane. They have requested a withdrawal. Without prejudice. Without prejudice. Can I have a motion from anybody? Chairman, I'll make a motion to allow hearing 0625 Smith Collins 51 Thomas
Lane Falma to withdraw without prejudice. I'll second. We have a motion in a second. Any discussion? You're all set attorney claw. I am. All those in favor? I oppose. None. And then we move on to nine sycamore.
Okay. For number nine, Sikcol, we have application 21 of the year 2025. Mario Kula and Josephine Dangelo have applied to the Falma zoning board of appeals for a special permit pursuant to section 240 10.2A of the code of
Felma to raise and rebuild the existing non-conforming single family dwelling properties located at 9 Sycamore Street in East Felmouth. Um, let's see. I read you the the address. This is for a special permit under section
240.2A to raise and rebuild the non-conforming single family dwelling. There is also within the application a request for the board of appeals to determine that a special permit is not necessary and that the building may be permitted by right under section
240.2b1D of the family zoning bylaw. Property is in a little pond coastal over pip coastal pond overlay district. The existing single family dwelling is a two-bedroom at 1,025 ft. The proposal is for a single family dwelling, three bedrooms at 586 square
ft. Uh it's in a VE15 flood zone. There's one previous those numbers again, please. Can you do that? Uh existing single family two-bedroom, 1,025 ft. Proposal is for a single family
dwelling three bedrooms 586 ft. That's taken off the uh 586 square ft. Okay. Footprint footprint footprint footprint of the building. All right. All right. Total floor square footage would be more. Okay.
Um is that there there was a decision of the zoning board of appeals number 79 of the year 1986 which denied a second floor to the property. There was another application in the year 2022 which was which was withdrawn. The lot is
2,932 square feet in a in a district which currently requires a 40,000 ft minimum. The frontage on the lot is 41 ft in a district which currently requires 100 ft. Sycamore Street is a public right of way at this location. The lot coverage by structure is
currently 35%. It will be reduced to 20% which is within the 20% limit of the zoning bylaw. Lot coverage by structure parking and paving is currently 46%. It will be reduced to 38.9% which is within the 40% allowed by the zoning bylaw. The
uh existing property has two non-conforming setbacks. To the to the street it's 1.1 ft in a district which requires 25. uh and to the west it's 610 of a foot uh in a district which requires 10 ft.
We've been advised that all uh the proposed dwelling when erected will all will conform to all setbacks. The height is 34 ft. That's the proposed height. Engineering has given us a referral. They have noted that the property will require a driveway permit.
They've requested that we we condition the project so that all storm water runoff remains on the property and that we in implement erosion and sediment control. There was also an issue with building uh numbers which they'll have to take up with the um uh engineering
department if this project is approved. The board of health says that the sewer it's on the sewer and a fourbedroom house isn't allow is allowed. conservation has informed us that they have issued an amended order of condition approving uh the project. The
water department requests that the water service be upgraded to 1 in PE. Uh fire department, no comment. Wastewater says that there's a sewer connection permit required and the building department has no comment. We have 18 letters in
support and 77 letters in opposition. Go ahead. Thank you, Madam Chair. Members of the board, for the record, my name is Kevin Clower. I'm an attorney here in town, and I am before you representing Mario Kula, Josephine, and D'Angelo, the owners of 9 Sycamore Street, both of which are both of whom
are here with us tonight. Mario and Joe are seeking permission to raise and rebuild the single family dwelling on Sycamore Street. This property is located at the southern end of the Marav Vista Peninsula in a dense residential neighborhood. It is in the RC zoning
district and it is within AV15 flood zone. The board has previously reviewed an application for this project in 2022. Uh we submitted revised plans in 2023 but withdrew based on uh feedback from the neighbors. Since then, significant
changes have been made to the application to address to attempt to address the concerns of the neighbors and the comments of the board. Some of those changes, as you'll see, have been more successful than others. Joe and Mario um mother and son uh purchased this property in 2022 and are
seeking to make improvements. Um it has been used by the applicants and also as a rental and upon completion of the renovations will be the retirement home for Joe. This dwelling was built in 1940 and as with any structure of that age, it's in need of upgrades and because it's in
a VE15 flood zone, those improvements should comply with the FEMA and building code requirements relative to substantial improvements. public good is served by compliance with those standards. In order to comply, the bottom of the joist of the first floor of habitable space need to be at least
two feet above the flood elevation, which is elevation 17. In this case, that's approximately 11.6 ft above grade. Currently, there's a one-story dwelling and shed footprints 1,025 ft and the lots 2,932 ft. It's non-conforming. Front
yard set back currently at 1.1 feet where 25 is required. Sideyard set back to the west of 6 feet where 10 is required. Lock coverage by structure of 35% where 20 is allowed by right and up to 25 by special permit. And lock coverage by structures paving and
parking at 46% where 40 is allowed by right. Presently uh there's actually no parking on the site that's not within the street layout. The applicant's proposal reduces clutter on the lot, eliminates the existing shed, um, and does provide for parking on site, more than sufficient parking
for two or more vehicles. Uh, there are three proposed bedrooms, which is an increase of one over the existing, but it is on the town sewer, which allows for four bedrooms by right. The proposed dwelling is substantially smaller than what exists today. It's 586 ft. And the proposal
will eliminate all existing dimensional non-conformities. The front yard setback is improved from 1.1 ft to 25.6. The sideyard setback to the west is improved from 6 ft to 11. The rear yard setback remains conforming at 10.2.
The sideyard setback to the east remains conforming at 11.4. Lock coverage by structure is decreased from 35% to 20. and the law coverage by structures, paving and parking has decreased from 40 46% down to 38.9, which is below the 40% allowed
by right. Lastly, and perhaps most importantly, will comply with those FEMA requirements. Before I get much further, I should note that based on conversations with some of the neighbors um and and trying to find a way to to make this work, the applicants intend to
revise the plans to eliminate the roof deck. Those plans have not been completed as of yet. However, the board's willing to approve this. that could be conditioned upon in submitt of the same. That alteration would reduce the ridge height by approximately 3 ft. We are requesting a special permit
pursuant to 240 10.2A which allows for pre-existing non-conforming structures to be changed by special permit. The board finds that they're not substantially more detrimental than what exists. You're asked to consider the standards of 240 12.1E and whether or
not the alteration creates any new dimensional non-conformities, impairs views and vistas and reasonably conforms to the average dimensions in the neighborhood. Here there's no new non-conformity created and all the existing dimensional non-conformities are eliminated. We did prepare a lot comparison worksheet looking at 37
properties within a 300t radius. And again, this is a very dense clustered neighborhood, but the proposed dwelling is below the average footprint and gross floor area in the neighborhood. This home was designed to uh observe the appropriate setbacks to respect the privacy of the neighbors while also
complying with FEMA regulations. In terms of average dimensions, it's very much in character with the neighborhood. The only difference being this would be in flood zone compliance and therefore elevated on stilts pilings. Simply driving through the neighbor neighborhood, you can see many similar sized and larger homes, many of
which if built today would face similar requirements. I hope to address some of the comments and correspondence received by the board and directed at the applicants. Mari and Joe have made significant efforts to discuss the design with the neighbors and those
efforts have largely gone unrecrocated but they have made significant changes to address the stated concerns. So what you see here is what was originally proposed and in that case setback was
improving from 1.1 ft to 7.7. The sideyard was going from 6 to 5.1 and the lot coverage by structure was green reduced from 35 to 34. The footprint was going to be 1,08 ft with a gross floor area of 1,800 square ft.
That was met with some significant criticism from the neighborhood as well as some comments from the board. So, additional changes were made to the plans in the next round in which case what they're proposing here tightened the footprint
significantly and because of that required a more modern roof style to remain under the allowable height limitation. Sorry, they improved or eliminated all the existing non-conformities uh except lot coverage by structure was going to be 22.3% which could have been allowed by special permit. However, that was still met with
push back. We were advised by neighbors to propose a second floor on the existing structure which we couldn't do uh because that would constitute again substantial improvement uh and beyond that there was an unwillingness to engage in conversations. So what we ended up doing was going back with the plans that you
see before you now. Again, these plans eliminate all the existing non-conformities uh in significant ways. However, we've been told that no concessions of any kind have been made by the applicants. Even within the last few
weeks, we've offered on multiple occasions to meet with the neighbors and to work towards a plan that they'd be in favor of. proposed a sketch plan which would have been similar in style to the original proposal. However, eliminating the roof deck and eliminating half the habitable space on
the second floor, keeping that more traditional roof line. And with that, we were told there's no point in continuing conversation. So I say all that to note that we have made efforts and concessions to work towards addressing the concerns of the
neighborhood. There is a similar home that I think is worth discussing. Five Armore Street just two streets over was granted a special permit from 2004. That was a lot of only 2500 square ft and they allowed for lot coverage by structure of 41% and a ridge height of
34.6% 34 ft 6 in. The difference is at that time that was not in the velocity zone. It is now after the change in 2014. So it was not required to be on pilings. 72 men was before this board in January. That was allowed to ra be raised and rebuilt with a ridge height
of 34 ft 10 in. But again, not in a velocity zone, so it's not elevated on pilings. Compliance with flood zone requirement should be encouraged and incentivized. It should not be punished for being the first one in the neighborhood to do so. There were some other matters that were raised in the correspondence. There were references to
the 1986 special permit application not denied in which the board cited a negative visual effect. However, that proposal was for a second floor that was going to be within one foot of the property line. In this case, all the proposed setbacks meet the requirements. There's a recurring idea
in some of the correspondents that these aren't homeowners. They're commercial investors and they're somehow prohibited from using the property and that's simply not accurate. They have a commercial mortgage which states they shall not reside there. But reside has a specific definition of permanent or continual use. At the time it was purchased, the
idea was to rent it for a year during which time they would undertake permitting to have plans approved and then to undertake renovations in which case there'd be a refinance in a construction loan. As I've mentioned, this is intended to be used as the retirement home of
Josephine after completion. Either way, whether they're investors or homeowners, uh it should have no bearing on the merits of the application. As I've discussed, this application does not create any new dimensional non-conformities. It eliminates all existing dimensional
non-conformities. Again, front yard setback from 1.1 to 25, over 25, sideyard setback from 6 to over 10, lock coverage by structure to 20%, lock coverage by structure paving and parking below 40 at 38.9%. Under this metric, the proposal
is not substantially more detrimental. And with flood zone compliance and the elimination of all those non-conformities is is a significant improvement. The board has asked to consider these issues and also whether the proposal has adverse effects that outweigh the benefits and as consideration we asked to look at the
adequacy of the site. Uh while undesized by today's standards, it is used currently for a single family home and will be used for a single family home. It is suitable and well intituated for proposed use. Again, there's no change from the current use as a single family. There'll be an improvement to traffic
flow and safety as providing on-site parking where none exists. There is an impact on neighborhood visual character. While this structure is elevated, compliance with flood zone requirements should not be viewed as a detriment as it runs contrary to public policy and the public good. There are adequate methods of
sewage disposal and drainage. This is connected to town sewer and we have provided uh drainage on site uh where none presently exists. The utilities and public services are present and more than adequate and there's no impact on the supply of affordable housing here. We have a proposal that is
not substantially more detrimental than what exists. It will provide a benefit in eliminating all the existing non-conformities and coming into compliance with those requirements. Given changes in coastal areas that are currently under underway, this is what the town should be encouraging. Changes allow for less
damage when, not if there's a significant storm. It's important to reiterate this. We want this from homeowners. We need these changes for the health and resiliency of the town. The applicants and their design team have worked hard to find ways to reduce the scope and impact of this project and to reduce any potential effects to the
abutters and to respond to the comments of the town. I believe that you can and should grant the special permit. I'd be glad to address any questions you might have. I want to note on something else uh Frank mentioned from the application. Uh, alternatively, I believe the board could provide a supportive finding that this does not require a special permit
under the exceptions set forth in 240.2b1D, which says exempted from the requirement for a special permit of the following: alteration, reconstruction, extension, or structural change to a non-conforming single or two family residential structure shall not be considered an increase in the non-conforming nature of the structure
and should be permitted by right under the following circumstances. Subsection D says alteration to a non-conforming structure where the alteration will comply with all applicable sections of the zoning bylaw in effect time of application and will not increase the habitable space. We're proposing 842 ft
of habitable space which is less than the 858 that presently exists within a home. So with that I would open up to any questions from the board and happy to address any comments or concerns. Who'd like to start up here?
Well, I just Attorney Clower, do you have the language that you could put up uh for 240 10.2? Bear with me. 140. um just so the folks can better understand what you mentioned and I guess through you madam
chair should we look at this portion of it prior to getting into the rest of the it's this section here in this section here. Mark, I'll yield it to you.
So, we're going to address if it needs to be if we're going to do a special permit. At least for me, I I agree with this. There's no point in going through everything if if we Okay, Mark. Right now, we're only going to address if we're going to proceed as a special
permit or not or supportive finding. H or a supportive finding. Yeah. Well, um, pretty easy for me. Um, we had one not dissimilar to this just a few months
ago and we gave it the big thumbs down. So, I think in being consistent, um, I would say that it requires a special permit. I certainly wouldn't vote any other way.
Scott. Well, I guess I'm going to take the other side of the argument. Um, I appreciate Mark's comments, but my read of this is under the changes that the applicants made and the additional elimination of the roof deck that I
don't believe that they do need a bylaw. They do not need us to approve it here. I think it seems like the board's debating whether or not it needs to come up. Thank you. Attorney Chris Lehurst from Falmouth. I
represent uh the Flynn's uh on the corner of Sycamore and Marav Vista. I think before we decide whether or not we agree with Mr. plower relative to the special permit or the exemption issue. I'd like I'd like to hear I I'd like to
tell the board my position on that as well. If I may, would this be the appropriate time to do it? If no, Mr. CL after we're finished, but it it seems like you're debating something without public comment on the issue, whether whether or not this is exempt from a
special permit. It seems like you're ready to make that decision. And I and I I think there are things that need to be brought to the board's attention. We won't do that without We won't do that without talking to you. I'm sorry. We didn't intend to cut you out of it. We talk first and then public comment comes after. Well, I already heard of you. You
feel one way and you feel another way. And we haven't had our debate at the moment. Okay. Well, I apologize. I don't mean No, you will definitely be allowed to be heard on every aspect of this. Yes. You'll hear before we vote. Promise. You'll speak before you vote.
Yes. promise. He promised. Frank, you want me to go next? No, I think um just an agreement. I think Did he address your questions? Yes, he did. Mr. Clower, would you the the bylaw that you're citing
240.2b1D provides that there shall be no increase in the habitable space in order to qualify for this exemption under the zoning bylaw. would you kind of go through the layout of the existing cottage and the habitable space and now what the layout of the new the new property is and the and how you come to
this conclusion that there's about um I think 16 square ft less of habitable space so we're right now we have a footprint of8 ft I think we said um which is shown basically 1,025 ft25 thank you which is
shown basically here And by flood zone compliance, this area is not considered habitable space. The entryway and the f in the in the ground level is not considered habitable space. Um it can't be
habitable. This is what's left. You have the first floor here and a half story above. The we had the architectural team put together area calculations of the existing and proposed
and came up with and this was designed very specifically to be under the existing um so the existing and I think it's instructive to look here you'll see this is the building here and this is what's proposed so already we're taking off a
500 ft area in terms of footprint and there is a half story involved but that is uh remains under the 858 existing square footage. So the top floor then is a half story because it's 1/2 or or less
than the floor below it. It's well it's um you'll see the size here and um so that's shown there. There is a a open deck on on a portion of it. So that is why it is smaller in size. So the deck does okay. So that deck area is shown
here is would be here. Yeah. Madam Chair, um they're asking us to make a decision here with plans that are considerably altered and they don't have to even show
us. Um and we're supposed to imagine um divine what it is that they're proposing to do as far as removing the the roof deck and what it leaves us with. I I think the change there would just be the elimination of the roof deck
here and the step by staircase. There'd be no other alteration. Frank, any further questions? So, the the roof deck and the spiral stairs were all on the exterior of the house, right? That's the only question I have right now.
Jim, I have no questions at this time. So, are we still debating uh 10 2B then? I have no questions on that part of it, but we'll have questions after
that. Got it, Nick. No, not not I feel it does need a special permit because it's going to change the neighborhood. I feel um it's just my opinion. It's a pretty drastic change for the neighborhood. That's why I feel it's important.
It's just my opinion. Anybody else want to say anything before we go to the public on it or Attorney Le? Well, um would you mind if I hold the public here? Yes. And as far as asking them like how many people in
this room no here for this permit? No, can't do that. I would say for the permit you can do, but don't ask any. No, not right. I want to know how many people are here for this application. Madam Chair, of all the people in the room, no public at all. No polling.
No. Okay, that's good. If I can ask a point of order. Um, does a vote as to whether or not a supportive finding is required require a supermajority or a majority? It's not affordable housing. I thought, but but it's not a special permit. No,
it's I think it's a majority. Believe it's a majority. I think it is, too. Yeah, I think it's majority. You think so? I I think so. Well, wouldn't it be uh prudent if we were to know exactly? Yeah, it would be prudent to know
exactly. Yes. Can you look that up? I don't know really. I think it's majority, but I'm not sure. We should know before we vote. All right.
So obviously what is being asked of you is whether the special there's a special permit required or not. And so obviously you need a supermajority to issue a special permit. I would expect the vote to be
the same because it's a it's a board action, but I did not specifically look that up. I think it says to grant a special permit of a variance requires a supermajority, right? But if you procedural question as to whether or not you're going to even go that far as a majority, I think but that's just my
thought. Yeah. So if you're making a finding that you don't need a special permit, [Music] sounds kind of gray to me. Yeah. Um, what should we do here? Attorney going to listen to a few people. Okay, maybe. All right. Uh, let's uh go to
attorney Laritz for a comment. Shall I limit my comments to simply that the exemption issue for the moment? Please. I don't believe the request is properly before the board and I don't believe it should be taken
up. The reason why the applicant is here tonight is because they did go to the building department where your building commissioner denied a request for a building permit and required them to to
apply for a special permit. If they didn't need a special permit, it would have been decided by the building department. We wouldn't be here tonight. Okay. If you look at the bylaw 240.23 A uh
3, it enumerates the powers of the ZBA. And the ZBA has what? Excuse me. What is this section again? 2.3A3. It's early on in your bylaw. Page is on health 111. Okay. Page seven.
[Applause] I apologize if I have the wrong copy of the bylaw, but I don't believe I do. November 2022. No. Zoning board of appeals for 23. I got 23. Well, I may have the wrong number. The zoning board of appeals
powers. The zoning board of appeals shall have the following powers. A to hear and decide appeals in accordance with 240 12.4. Those are appeals from the building commissioner. to hear B to
hear and decide applications for special permits upon which it is empowered to act. C to hear and decide petitions for variance. D to delegate to the zoning administrator some of its powers and E
to hear 40Bs comprehensive permit applications. The building commissioner says they need to come to this board. If they don't like that decision, there is a pol, there is a procedure to follow. You appeal the
decision of the building commissioner. The building commissioner comes into this room and stands before this board and tells you why he is not in agreement with attorney Clower. We seem to be bypassing that process. I don't find any
enabling legislation in the bylaw for this board to simply say you don't need to come here. That may happen occasionally as a matter of practice, but that doesn't make it right. The bylaw enumerates the powers of the board. And years ago, I was on this
board. It was basically three things. Special permits, variances, and appeals from the building commissioner. 40B came along. And I'm I'm sure this board is quite familiar with 40Bs by now. But this is not a board that you come to in
a public hearing and say, "We're here for a special permit, but perhaps we don't need to be here." In my opinion, we're here to hear a special permit application tonight. And if we disagree with the determination of the building department, that decision is a decision to be appealed and come before this
board in a proper manner. Anybody have a question or response on that up here? Um, I do uh I think um this question comes before us without the proper 7-day notification if nothing
else. His application was for what his application was for. It certainly wasn't for this. Um and and we this is thrown on us tonight. I have a problem with that as well. And then not knowing what the vote is supposed to be, whether it's a majority or a super majority. And then
um reading here I have to uh agree with Mr. Levers as well. I think that's kind of a prepoundonderance. Uh um I I and then if we're asked to make a decision
without um proper illustration. I mean, you know, as minor as you might think it may be. um you know and uh and then then on top of that maybe we're getting too far into it the meat of it but uh just because you're taking the steps
off who's to if the applicant used if the applicant didn't need a special permit we wouldn't be here we wouldn't be here the building department is not granting the building permit the building department is saying you need a special
permit if you want to appeal that determination you have every right to, but that hasn't been done. And if you look at your enabling or or legislation or the powers granted to you to this board under the bylaw, I
don't believe you have the power to do what attorney Clower is asking you to do tonight. Madam Chair, it's in the We don't have a letter from the building commissioner with his decision, which we often do, but in his application, the the
applicant specifically requested this relief. And what what is that request? Is that a request for a special permit or a variance? It's in the alternative and it's in the application for anybody to see. So, it's not that there has been no filing with this board to appeal a
decision of the building. Could an applicant file an application before this board that merely says we want this board to determine that we don't need a special permit? If there's a provision in the zoning bylaw that says there's an exemption that applies, I don't see why they can't ask us to make that decision.
Madam Chairman, if I may through you. Um just in pulling up chapter 48 section 8 appeal to permit granting authority reads an appeal to the building excuse me appeal to the permit granting authority as the zoning ordinance or bylaw may provide may be taken by any
person agrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provision of this chapter by the regional planning agency in whose area the city or town is situated or by a person including an officer or board of the city or town or of the abiding city
or town agreed by an order of decision of the inspector of buildings or other administrative official in violation of any provision of this chapter or any ordinance or bylaw adopted there. So in looking at this I I'm I would have to agree with the argument at this point of attorney Lebhurst that absent Mr. Clower
and I'm happy to ask him for the purpose of the record if he's if his applicant if his client has been agrieved if a building permit has been denied. It seems that if the building commissioner viewed this as an as build it would have been granted. If it was
denied then I think that that would be then before us. We don't do a lot of appeals of the building commissioner's determination. Uh but I I think at this point as to that issue as to whether or not Clower has the burden of showing that the applicant has been agrieved by
the denial of Mr. Street to issue a building permit in this particular situation that would then be for us as not a special permit application but as an appeal. And um I I I Hold on, Mark. Hold on. I've spoken with Mr. Street and
I know Mr. Clower has spoken with Mr. Street and I've spoken with Mr. Clower. There may not have been some formal application denied. That I don't know, but I do know that Mr. Street was consulted and he said, "You got to get a special permit at the
ZBA." That's what I do know. And if we're going to somehow backdoor Mr. Street here and sort of come before this board saying we don't agree with Street, but we're not appealing Street, I I think that there's a procedural problem.
Mr. Street knows about this application and he know and he has specifically said it needs to come before this board for a special permit. So and and again even notwithstanding that if you look at the powers that this board has does it have
the power to say you don't have to come before us? It it has to be granting a permit or it has to be hearing an appeal of streets decision. We're not hearing an appeal of Street's decision to just this would whether or
not he even sought the special permit tonight. If you're going to go along with attorney Duffy's logic, an applicant could simply come in here for a public hearing and say, "We don't think we need to come before this board." Yet, here we are telling you that it makes no sense. There there are
only certain ways procedurally you get before the board. And if I know Mr. streets position. It is it's a 2900 foot lot. We don't see 2900 foot lots just as as Miss Murphy said.
It's it's a very very small lot and is a very he he wasn't granting the special permit. He he I mean excuse me he wasn't granting the building permit madam chair because if he was we wouldn't be here. Please. Um, again, uh, just with my argument
before, I don't know what Frank was saying, but, um, let's just get back to page one. I mean, this is what you give us when we go out and look at these application. It doesn't say applications. It says application applied to the zoning board of appeals for a special permit pursuant to section
240.2 of the code of famouth to raise and rebuild the non-conforming single family structure. It says nothing else. It um I I I don't understand how we leaprogged to uh that in the first place. Let's let attorney claw come up
please. If I may just also uh to to echo Mr. Fineran, the publication says nothing about seeking some form of declaratory judgment before this board that we don't need to be here. His letter to the board says it, but it says
nothing in the publication. Come on. The board wants to continue the hearing and talk with Mr. Street. I' I'd welcome it quite frankly, but I I think that I just want to hear from about doing it. I just want to hear from attorney Claw, please. Just one more thing. Go ahead. It wouldn't be properly
noticed. This is the notice. I mean, I I So, to clarify, there's been no formal there's been no building permit application, nor has there been a denial of the building permit application. Um, so it's not an appeal of the building commissioner's determination. To Mr. Morris's point. However, chapter 48, section 6 allows the board to make
support a finding that something is not substantially more detrimental. And our bylaw specifically carves out this as an exemption for not being substantially more detrimental. I did consult with Mr. Street and his comment to me was you should go to the zoning board, not necessarily for a special permit. We can get a support of finding. He and I
discussed that as a possibility. So that's why we submitted and that's why my cover letter went into length about how in the alternative the board could find that no special permit is required. Mr. Clower, my my my hesitation about this is that this board without
getting into specific hearings has been over has been overturned in litigation when there have been these informal requests or informal determinations. I would prefer as to this issue. Well, first of all, I agree with Mr. Ferin about the proper notice. I'm very concerned that it may not be that there would be an open meeting violation if we
take it up. but substantially even if it was properly noticed. I would prefer if you're asking for this that you've gone and requested something that you're arguing is by right and that you're then agrieved when the building commissioner says no it's not by right you need a special permit that that we then have something in the file saying okay the
building commissioners weighed in he said no now it's a very clear appeal as opposed to us saying you're asking us essentially to make a declaratory we can make findings but you're asking us essentially make a declaratory judgment so to speak no I was looking for support of finding um so I think I am asking for
a finding but that being said, I've presented the argument for the special permit. I'm fine proceeding in that manner if the board's not comfortable giving us a supportive finding that a special permit is not needed because I think that we satisfy the conditions for a special permit.
Madam Chair, I mean, go ahead, Scott. The legal wrangling aspect of this, I'm not the attorney on the board. Should town council look attorney Clower's application here and potentially does this by law as he
stated or as attorney Lebs has countered. Is it appropriate for us to review? Did you just wave the your argument under That's what I thought I just heard. I listen Mr. Duffy, given the choice, I'd rather I'd rather have you determine that I don't need a
special permit. But if the board's not going to do that, I'm willing to proceed. Um but my preference of course would be that there be a determination that no special permits required. Madam Chair, just just for the board's
edification on a regular basis, people meet with the building commissioner and they want to do a project and many times he looks at something and sees an encroachment or whatever and sends people upstairs for a special permit. He
does not have a process where he issues a denial and then sends people. So if Mr. Clower asserts that there was no building permit applied for, then there was no denial and therefore he does not
need to be before this board as an appeal. And as far as notice goes, I will tell you the truth. These legal ads are very expensive. That being said, we make a concerted effort to make sure they are
brief. We we meet what I would assert to be the requirements for a legal ad, which properly identifies the property and it properly identifies essentially here the maximum relief sought. We, you
know, we cannot publish full letters of details for every little setback that they want, etc. It's a general piece of information. We publish all the information on the town's website so that anybody can access the plans that
are proposed. And I would assert to you that clearly people have been noticed because they're here, right? So that being said, obviously it's the board's determination, but I will just explain to you that we do specifically keep the
legal ads very brief. But will they notice that there may not be any special permit at all? That's your option in any vote, but we don't publish here are your multiple options. It's your choice.
Could I uh say something? In my opinion, the way to decide if a special permit is required or not is for the applicant to apply for a building permit because it's the building department's job to decide whether or not they're entitled to that
building permit or not. Mr. Clower is asking this board to decide whether or not they're entitled to a building permit rather than the building department. The building department should be asked and then they decide and
if they agree with Mr. Clower, the building permit gets issued. If they disagree with Mr. Clower, Mr. Clower appeals that decision or he comes before this board for a special permit. When you when you need to know
what type of permitting you need in this town, you walk into town hall and you go to the building department. You don't run upstairs to the zoning board for advice on these types of things. You start with the building department and if the building department uh makes a
decision that you disagree with, well then you consider your other options and one would be to appeal. I don't believe this is properly before this board. Your your bylaw specifically enumerates the powers that this board has and this
isn't one of them. Adam, I think there's just simply too many questions unanswered here to proceed. I agree. If we proceed tonight, we're just inviting litigation. Um well, if he withdraws his um original, this goes back to this. I
mean, what's changed? Well, they're pursuing this. We're we're still He has not waved his argument under under the exemption. I thought he just said that he would be willing to pull it. He be willing to go ahead if we deny it. But I didn't interpret that to
be he's waving it. Oh, I interpreted if he'd be willing to go ahead without us getting into Just ask him to wave it. Yeah, I asked him if he's waved it and he said he he prefer he I think we should get counsel. That's the way I heard it. But uh that's what I that's my mind and one of
your I think we should get counsel. I would like that. Will you agree on that, Frank? Would the board not want to hear from Mr. Street as to what his position is? He doesn't come to appeal. I I would like to hear whether Mr. Clower wants to
withdraw. Just go ahead with his original application. Otherwise, there's no sense in us proceeding. I would guess that would be the I still want to hear if she'll answer back maybe.
I'm thinking through the if this then that if that then this matrix in my head um as I see it if we wave this request in this moment it wouldn't prohibit us from still applying for building permit under that exemption even if the special
permit were denied. What? Okay. We're looking for bunt and hit a grand slam. Um, how about a continuation? So, we take this. I can't feel right. You just shut me down. Yeah.
Yeah. Does everybody agree? Yeah. Continue. We'll get information from town council. I'd be happy to have questions. We're not lawyers. We get to play one on TV, but this gets a little too deep for me. No. In the words of was Sam Ray Burn,
I'm just a simple country lawyer. Yeah, I only got eight years of school and five in the first grade, three in the second. This is over my head. Um I'd be happy to speak with town council as well and and to speak for Mr. Street. So I think this just that's just
our best there are this is this is this is a question of first impression in a lot of ways. This is just a litigation nightmare. So I think I think that's what we need to do. We're looking for questions to whether or not the question of the exemption Yeah. is be properly before us and if it is, do we have the
authority to rule on it? And then what is the vote? Is it a majority vote or a 4 to1 vote? Yep. And then I would think that that should be noticed so these people can know that they can come here all for nothing. Yeah. Yeah. I mean that's just not proper. It doesn't treat the public in the fashion they should be
treated. And I would move that the this case be continued to agreeable date. Second continuence. All right. So you want to continue and what are we looking for in the inter room?
Advice from town questions again Frankie. All right. But we need to be specific. So do you want to ask about notice? notice or here's the other part too is depending on when you continue to if notice is a concern it can be renoticed
and should should they be separate should I mean I mean it's I don't think that's that that's unreasonable either no but um we might be able to deal with that simply and then if he's not granted the permit then we'll get on to this I
mean it's not fair to have these people um I I I don't think anyway. This is quite confusing. Like I said, sounds like you're trying to bunt and hit a grand slam. If it pleases the board, if the applicant were to apply for the building permit, there's your answer right there as to what we we don't even
need to take it up. If if if the applicant has applied for a building permit, the building department has granted it. That's a 20 to $30,000 question, though, because you got have to have structurals done and then you have to pay for the building permit itself. Well, I I understand, but I didn't I didn't write
the bylaw, and the bylaw reads the way it reads. I think it does, and that's unfortunate, but the applicants made their pitch tonight for a special permit. Now, I know there are a lot of people in this room that want to be heard relative to that. So, I guess that begs the question, are they going to be
heard tonight or we continue that? If we're going to continue, we're just going to continue and not have any public I feel. I would it would be an exercise of futility. Yeah, I believe there's been a motion opinion. I believe there's been a motion and a second for
continuation as a vote. Yeah, we we I was looking over to North. She was writing down the question for public comment at the next hearing. Yes. All right. Questions through you, Madam Chairman. Yeah, go ahead. The vote required as to a determin or
either an appeal of the building commissioner's determination or lack thereof if it's a simple majority or a supermajority. Second, as to the request for our determination as to whether or not a special permit is needed, is it proper
or does it need to come in the form of an appeal after a denial or otherwise an applicant being agreved or support a finding? And should it be or can the board make a finding that it is not required? And should it be a separate application? Keep it simple. Yeah. So, I don't think
you need a separate application. And I think you can have a single application. You can ask make multiple statements on it. Yeah. Right. Well, it would have to be in order anyway. Yeah. Put the cart before the horse. I think you take this. No. Well, there
there are circumstances where building commissioners have deferred determinations to zoning board of appeals before. Um I can give you an example of the Greek churches where they have arches that
exceed height limits. Right? So the building commissioner did not want to as of right grant the building permit because of the height issue. However, separate issue under the do amendment. It's an exemption. So in
that circumstance, the board found that there was not a special permit required and that it was covered under do. Okay. So you do have the authority to do that. Yeah, but do is a whole different animal. Do is a whole thing. But I'm
just saying you have the ability to make a determination whether something you you can make a finding that it doesn't require a special permit, but but perhaps it makes best sense for the building commissioner to Oh, yeah.
What kind of dates are we looking at? Sounds like bend over. Sophie, uh, we would be looking at June 26, but again, I want to make sure we have the complete list of everything you're looking for because, for example, if notice is an
issue in the interim time, we can certainly correct the notice and include what needs to be included so that that issue goes away. Okay. So, um, so we have notice, we have the vote. Uh,
do you want the vote? We don't have a vote yet because we don't know anything. You want to know about the vote? Yes. Sorry. How many you need? Yes. Okay. Do we want any documentation through the chair from the building commissioner?
I mean there's there's a 100 pages in this document. And to attorney Lever's point, there's nothing here from the building commissioner. In fact, he had no comment. He had no comment. Didn't even make a comment. I know. Can we ask for a comment? Right. I I think it would
be appropriate to get some type of determination from the building commissioner. Yeah, I agree. I mean, obviously the plans are not building ready with electrics and all that, right? But I think as far
as making a determination based on what is currently available, that should be reasonable. Yeah. Okay. I'm available 26th. Huh? I'm available the 26th. Okay, good. 26. Attorney Laritz is 26. Okay, Chris, is 26. Okay. Uh, 26. Okay.
So, we have a motion and a second up here. Yes. Everybody all set to vote? All those in favor of continuing to the 26th? I oppose? None. Sorry you guys for coming out and having a look at us. I'm sorry.
I hope nobody's confused. Well, well, well. We're already punting, folks. Excuse me. Excuse me. You know who seconded the vote? Jim, who made the motion? Jim made the motion. Who? You made I second it. Frank
made the motion. I I second it. Well, that was crazy, huh? That's easy. That's right. Well, I didn't have hunting that on my school uses parts and things like that. I had my foot rebuilt. I when I did my
Achilles I smashed my all the tendons in my foot and the ligaments just didn't show up because that was more painful. Hopefully this is the end but this is and my daughter actually. [Music] All right. Well, moving on.
Our next case is 2325 464 Davisville Road. Okay, I'm just going to let everybody kind of out. We just want to remind people that we're still in session. They need conversations outside. Madam Chair,
Madam Chair, folks, we need to start another hearing, please. Thank you, Suzanne. Yeah. Oh, yeah. Oh, never mind. Don't need to. I do better hollering.
Okay, this is um application number 23 of the year 2025 by Kevin P. and Mary Beth Duffy trustees. Just as a disclosure, I am not related to them. I'm not related. They have applied by country. They have applied to the zoning
board of appeals for modification of existing special permits pursuant to section 2410.2A and 246.6B 6B of the zoning bylaw of the code of Falmouth to convert a portion of the existing workshop into an accessory dwelling unit subject
properties 464 Davisville Road in East Falmouth. Um the uh zoning district is an RB district. There is a historic district and is also the Bourne Pond coastal pond overlay district that's that are
involved. There are two flood zones AE12 and AE13 and a portion of of this properties in in in both of them. The existing situation is a single family dwelling with an accessory uh structure,
a pool and a workshop 6,79 ft. The proposal is for a single family dwelling, an accessory structure, a pool and the workshop with an ADU for 631 ft. The three existing special permits are,
and I'm going to just read them. Special permit 89 of the year 2003 granted a special permit for an accessory workshop structure 22 ft in height with a condition that there be no accessory apartment in the structure. Um, special permit 21 of the year 2000
uh 2012 uh for an existing accessory guest house structure 21 ft in height, three bedrooms, guests only, no cooking, um no bedroom in the workshop and again no uh ADU or accessory dwelling unit on the
property. Then in 9924, that's an administrative approval from the administrator of the zoning board of appeals. Um, which related to a farmer's porch and some other work on the property, but u it incorporated all of
the conditions in special permit 8903 and 2112. They remain in full force in effect. So that's what the application is is to deliminate the no accessory apartment in those three special permits. The uh property
is 87,966 ft in a zoning district which currently requires 40,000 square ft. Street frontage is 147 uh feet in a district that currently requires 100 square feet. Davisville Road is a public
right of way. Lock coverage by structure 6.9% it will be 6.8%. Uh it's well within the 20% limit of the zoning bylaw. The lock coverage by structure parking and paving is 16.3%. It'll remain the same well within the 40%
u allowed by the zoning bylaw. There are no noted nonconformities on this property. Um engineering um has said that if the ADU is approved, it will have the number of 464C Davisville Road. Board of Health is okay with the septic system. There are
two septic systems on the property. Conservation had no comment. Fire no comment. Water department said a separate water service to the ADU is required. And they also want to be aware that no cross connection is allowed between town water and wellwater if
there's a well on the property. planning board uh approved site plan review on April 25th, 2025. They were concerned with storm water runoff and the rental period for the ADU or for any property on the is not less than 6 months. Uh no
noted letters of either in support or opposition in the file. Uh Mr. Duffy, I believe there was a revised referral from the water department because we submitted a revised plan noting that the back building is serviced by a drinking water well. Um, so they let um they
released that request for a separate water service. Oh, well fine. Okay. And this is the one that has the planning board site plan? Yes. Yes. Pling board site plan review approved April 25th, 2025. Uh, good evening, Madam Chair, members
of the board. For the record, Kevin Flower. Uh, I am before you representing Kevin and Mary Beth Duffy, the owners of 464 Davisville Road. Mr. Duffy is here with us this evening. Uh we are applying for modification of the existing special permits 89-03 and 21-12 to allow for a
detached accessory apartment in the existing barn/workshop space. So 464 Davisville is located near the southern end of Davisville Road. Uh it is a lot of 87,996 ft and is slightly over 2 acres zoned RB and does presently contain a
single family dwelling at the front of the lot as well an accessory um building with three bedrooms uh and a which is formally a home with the kitchen removed uh and an existing workshop which does not presently have any bedrooms. However, the workshop meets the definition of a bedroom as noted in the
health board referral. Some history is really required to understand the site and application. Mr. Duffy did a great job going through it, but I will review as well. Special permit 89-03 was issued when the workshop and the home were on an abuing parcel at 468 Davisville Road.
Uh then as now they were in common ownership, though different common owner. Um the decision allowed the addition in addition to the workshop but conditioned that it not be a separate accessory apartment. Uh those conditions have been carried over. Uh special permit 21-12 um was issued to allow an
adjustment to the lot lines between 464 and 468 Davisville uh which relocated the then existing dwelling and workshop from 468 to 464. So this resulted in a primary dwelling in the front of the lot, the accessory building uh and two accessory buildings, but the the
accessory uh structure with the bedrooms with the had the kitchen removed uh which was conditioned in that approval and also um which just serves simply as accessory habitable space to the primary dwelling. And then there was the workshop space. So condition number four of that stated there shall be no
bedrooms created within the accessory workshop structure on the sub property. Condition number nine stated there should be no accessory apartment allowed on inserted property as set forth in section 240-70D of the code of fment. Condition number 10 stated the applicant shall submit to the board of appeals for
approval a restricted covenant/d restriction document stating that the subject property use is uh a single family dwelling and that the accessory structure shall be used by family members only and cannot be rented out separately from the single family dwelling on subject property.
That covenant was recorded and included a statement that said uh the workshop shall not contain any bedrooms. This covenant shall run with the land in perpetuity. It may be modified only with the board's approval set forth in the decision duly filed at the Barnesville County Registry of Deeds. As this board knows, there has
been some re recent legislature at the state known as the affordable homes act of 2024 uh which allowed for accessory dwelling units as a buy matter and actually removed the requirement of a special permit for detached accessory dwellings. However, we have these existing uh
special permit conditions which we're seeking to modify. So, the applicant seeking to convert a portion of the workshop into an ADU pursuant to 246.6B. Under this proposal, um 853 ft of the workshop, which is some first floor space and some loft, will be
converted to the ADU. The balance will remain um storage and workshop area. As noted in health referral, this is not considered an increase in bedrooms. Um there's no impact on conservation. uh it is in line with zoning requirements. The zone lock coverage by structures shall be 6.8 which is well under the 20%
allowed. Lock coverage by structures paving and parking will be only 16.3% well under the 40% allowed. Uh it complies with all setback and lock requirements. And further it meets all the requirements for an ADU. Um the lot is more than 7500 ft². There's one
proposed bedroom in the ADU. ADU is 853 ft which is only 26.6% 6% of the primary dwelling where up to 50% is allowed. It meets all the design standards set forth in the bylaw. There's no significant changes in existing appearance. Uh it remains the
appearance remains that of a single family dwelling with associated outbuildings. All of which results in this request which is to modify condition number two of special permit 89-03 and conditions number four, 5, 9, and 10 of special permit 21-12 as well as restrictive
covenant which would be accomplished via the recording of a modification. Uh we did note a well on the plans to address the water referral. So this proposal will not create any new non-conformities. All structures in the lot will comply with setback and lot requirements. propos change is by no
means substantially more detrimental than what exists. Um, and this will be in compliance with the state law which governs ADUs as well. So, I believe the board can and and should approve these modifications to the existing special permits, but I'd be happy to address any
questions you might have. Let's down let's start down this end today. Yeah. Any questions right now? Nothing yet, Nick. Tony, I'm I'm a little confused about this. Um the current 464B is the middle building. Is that
correct? Plans I have in front of my question I guess to begin with is you can only have one ADU from the site. The middle building appears to be an existing ADU because it has a kitchen in it. Your argument in the past has been that
has no cooking facilities. because it's clearly labeled as a kitchen. A kitchen by all right is some place where you prepare food. So how do how can you have 464B as an ADU or the appearance of an ADU and then how can you have the
workshed then become ADU? So our bylaw has a specific definition of what a dwelling is and included in that is cooking facilities. There are no cooking facilities in 464B though it was a condition of the approval. A kitchen can be a place where you eat and that could
be cereal that is not cooking. Um it could be a place for gathering. It could be any number of things. Those are plans that the applicant prepared at my behest. Um I didn't anal I didn't scrutinize the labeling of the rooms. Um but I did confirm with him that there's no cooking facilities in that building
which is what would make it a dwelling. But beyond that, that wouldn't constitute an ADU because an ADU has size limitations as well as bedroom limitations. Um what we're proposing is an ADU that is within those size limitations and within those bedroom limitations. So that does not constitute
an ADU. It's simply accessory habitable space that is accessory to the primary dwelling. It's not used separately. It can't be rented separately. An ADU can be rented separately. The conditions governing that would continue to govern that. Well, those are my concerns. Uh the
board doesn't have the opportunity to look inside of these buildings. We have something clearly labeled as a kitchen and by all rights a kitchen is someplace where you do cooking and prepare food. So I only bring that up for the board to consider. I appreciate what you've said.
Uh by all appearances the uh workshed will create a second ADU. But isn't this more about clearing up the restrictive covenant on the workshed? Yeah. I mean, is is that the basic qu? So, in other words, if in fact, uh, 464B is is not a
current ADU by whatever the definition of an ADU is, doesn't it just fall back to just clearing up the covenant because it says, as you pointed out, uh, that the board has the right or back to the board to change that covenant. Isn't that Isn't that all that's required?
That's what that's what we're looking to do is to release the covenant because the board I say this very respectfully doesn't govern whether or not there would be an ADU in the in the in the workshop that's under state law under this new affordable homes act. What I'm
asking may I ask a question on that? We have a prop we have Massachusetts affordable housing law has a new ADU excuse me but we are still going through that as part of it. It's going to be article 16 and
it's not part of our bylaw yet and I'm not sure if that can be used in this argument. I state law would override local zoning. All right. So even if the attorney general has not approved our u bylaw, we have to follow the state
bylaw. Yeah. And also bear in mind that uh our approved bylaw though not our voted approved bylaw by town meeting though not yet approved by the attorney general is retroactive to town meeting. So it's in effect currently.
All right. So basically it is about clearing up the restrictive cover. Okay. Thank you. Couple very easy ground ball questions. Um, I noted that the additional size is 6,79 and it's being reduced to 6,031. What's being eliminated or is that just
a There is Nope. There is this this stairway is coming off. Okay. There's a stairway to this loft storage area right now that's being removed. Uh, let's see. This is a land court property. Yes. Okay. And I I did read the planning
board decision. Uh, I presume from zoning standpoint that there'll be no objection that we also in condition uh any rentals not less than six months specifically excluding wheat. I presume this not going to become a commercial enterprise. No. And this is uh I mean that that's you know that's saying
that's putting a condition saying we'll do what we're supposed to do anyways. So yes, we're happy to do that. It's a lovely property and a very nice project. Thank you, Frank. I have no questions at this time. Thank you. What was the square footage of the ADU again? Sorry.
853 square feet and the uh the affordable homes act allows allows for 900 ft or 50% of the primary dwelling whichever is less. Thank you. Mark, do you have anything?
Um we're going to see a lot of different things and this is certainly a new one on me. Um, well, I can understand uh you have lots of kids and grandchildren, spreading everybody out. Yeah, the way
the better sometimes. Four adult grown sons with with with grandchildren. Yeah. Nice to have space. About 600 ft away who probably still fight like they're 12. They probably will. Um, I'll be honest, I'm a little gray here, but I got I got nothing I can hang
my hat on. So, uh, you know, I mean, if you could subdivide this and do this anyway, I guess. So, what am I going to say? Anybody have any other questions before we go to the public? Everybody good up here? Yeah. You all
set? Anybody from the public want to comment? Wow, different crowd than the last one, huh? I thought they were here for this. Yeah, that's how many people didn't raise their
hand. Little quick math for you. I think you wrote I say we motion to close. Second. We have a motion to close in a second. Any discussion up here? Do we need any more information from Kevin? Because I know from Attorney
Glow. Last time we closed, I did have to ask a question of him. I have to Yes. Ridge Heights. That's usually my question. Everybody's all set to close. All those in favor of closing. I oppose.
None. M chair. I'll make the motion to modify condition two of special permit 89-3 and modify conditions 4, 5, 9, and 10 of special permit 21-12. and also to modify administrative approval 9924 and
the covenant that generated by it and recorded in the Barnesville County Registry of Deeds to eliminate the requirement or the prohibition on an accessory dwelling unit on the property. Second, Scott B. Yeah. Okay.
We have a motion in a second. Shall we do findings? Okay, we have the property well um properties in an RB zoning district. There are no nonconformities on the property. There a property is
87,966 square ft in a district which requires 40,000 ft minimum. The street frontage is 147 ft in a district which requires 100 ft of frontage. Davisville Road is a public right ofway. The lot coverage by structure is
6.9% excuse me will be 6.8%. 8% within the 20% limit of the zoning bylaw. Luck coverage by structure parking and paving will be 16.3% within the 40% limit of this Velma zoning bylaw. There are no noted
nonconformities dimensionally on the property. Um the um referrals have been read into the record, but the planning board in its site plan review of April 25th, 2025 notes that the rental period, there'll
be a six-month minimum rental period on the ADU. Um and also the conditions of the um relative uh state law regarding rental of an ADU shall apply. Um there are no noted letters in support or in
opposition. Um, and since this is not, well, this is an amendment to a special permit, but the conditions I'll grant read them anyways. uh in granting a special permit or modifying a special permit. Section
242.1E requires that the planning board, excuse me, the zoning board of appeals make a determination that the proposed use will not have an adverse effect that overbalances the beneficial effects on either the neighborhood or the town with respect to and we determine that there's a site is adequate for the proposed use.
The site is suitable for the proposed use. There's no impact on traffic flow and safety is adequate. Disposal of sewage as evidenced by the referral from the board of health is adequate utilities and will no not have a negative impact on affordable housing.
Nice. No opposition offered at the hearing and none noted in the file. The conditions the conditions in the site plan review regarding rental period. the rental the the planning board should comply with all boards. Comply with all boards,
right? All boards per plans. Um, you didn't change, you didn't. Um, all department requirements and requests. Uh, construction hours 7:00 a.m. through 7:00 p.m. Monday through Friday, 8:00 a.m. through 4 on
Saturdays. Construction on Sunday or town observed holidays. any violation or work hour limitations report to the ZBA may be result in the applicant being recalled to a meeting of the ZBA with such notice as the board deems proper to outline why there is a
violation. Um all construction vehicles and materials should be located in the lot dark sky compliant lighting. Um I think anybody else got any other conditions? modified restrictive covenant to be drafted by the
applicant's attorney submitted to town council for review as to I actually think just your special permit decision the way it's written in the in the covenant it says will be modified by a decision of this board recorded at the registry of deeds modify if a restricted covenant is going to be required by land
court they're prickly over there it'll be drafted by the applicant's attorney reviewed by town council and executed by an appropriate town official if needed oh we also want to post the assigned address for 64C.
And I'm not sure if engineering made any mention of do B2 just to be safe. Yeah. Okay. Um want to still retain the restriction for no cooking in the excess habitable space. Right. And I
think this is better. You want anything on that kitchen? I think it's a couple. We did that. I think that's it, right? Anybody think of any other condition? I think we're good. Everybody all set to vote. Ready. All those in favor? I
oppose? None. Great project. Enjoy. Thank you very much. All right. Next up at bat, we have 314. 314 Quissit. This is application 27 of the year 2025 submitted by William F.
and Elizabeth A. Scanel. They've applied to the Falmouth zoning board of appeals for a special permit pursuant to sections 2410.2A and 2401.4A1 uh I and two 247.3 C of the FMA zoning bylaw to
construct a pool, cabana, and sport court in the front yard. more than 50 feet from the front property line and to allow the alteration of a land form within the flood plane overlay district. The subject property is located at 314
Quiset Avenue in Felmouth. Um the property is in an RA zoning district. Uh the overlay districts are the quiz harbor coastal pond overlay district and also the national heritage endangered
species program has identified this is property subject to their requirements. The flood zones are loca are noted at v16 and uh v18. Um there's a previous decision of
the Falmouth zoning board of appeals designated uh 2652 of the year 1975 which applied to the property when it was currently owned by when it was previously owned by the National Academy of Science and it does not have any bearing on on this hearing so I won't
read it. Um the existing property is um 1,280 ft. It's a single family dwelling with a carriage house. 1,000 10,000. No, I was going to say that's
I wrote it kind of small here because I'm running out of space on my paper. They got plenty of space. Um, the proposal is for a single family dwelling with the carriage house, a pool, cabana, and sports court in the front yard. and the total square footage
will be 12,329 square ft. Um the property is 175,986 ft. That equ is equivalent of 4.04 acres on a district that currently
requires a 40,000 ft minimum lot size. Uh for such a large lot though, it only has 88 ft of frontage. Um and 100 is required. Um the street is a public right of way. That's Quiset Avenue. The
lock coverage by structure is 5.8%. It will increase to 7%. The limit is 20 under the zoning bylaw. Um the lot coverage by structure parking and paving is 7%. It will increase to 23.6%. But the limit is 40%. Now the
carriage house which is on the property is non-conforming. It is in the front yard, but it is and it is more than 50 ft um from the the um from the street. I didn't find a special permit for it. So, apparently it
was built before a special permit was required. Been there for a while. Okay. Uh there are no noted nonconformities with any of the structures on the property. We have a referral from engineering. Uh they concerned about storm water runoff and again their usual concern about the building number. The
board of health is okay with the septic systems. The assessors have is okay. The fire department has no comment. The water department is okay. The planning board did not issue us a they sent no comment. The there's a historic district um involved on the property and they've
issued two certificates of appropriateness and three administrative approvals. Um there were no letters either in support or in opposition found in the file. There was questions in there about the
earth the alteration of land. Yes, that that's one of the things they've applied for is uh there was a referral from the building uh department that we worked through and okay they changed it then changed it back and okay we modified the I'll get to that. You
can explain. Yes. Go ahead. Mel. Uh, good evening, Madam Chair, members of the board. Uh, I am before you representing Bill and Beth Scanel, um, the owners of 314 Quizet Avenue. I'm joined tonight by Mrs. Scanel, uh, who's here, as well as Mike Borceli, the civil engineer with Smouth Engineering, Dave
Hawk, who is the landscape architect with Hawk Design, and Thaad Samsco, who is the architect with SV Design. We are before you tonight requesting a special permit for this property at 314 Inquisit. So, as Mr. Joffy went through. This is a 4acre parcel in an RA zoning
district. Portion of the lot is in the BE18 and a portion is in the AE16. Although neither structure is located in the flood zone. Um it's located basically in Quiset Harbor. Um it's surrounded by the harbor on three sides. Um I know we joke around a lot about how pretty this site can be. This is a
pretty special piece of property. Yeah. Um as the board's likely aware, this is was previously owned by the National Academy of Sciences. It was used by them as lodging and function space for decades. The owners purchased this about two years ago and have been undertaking
permitting and construction uh on this since then. So the carriage house was the first phase and that phase is is basically done. Um they're presently working on the main house and and what we think is the last phase will be uh the undertaking of the landscape and and amenity or accessory structure designs.
So, we're seeking a special permit from you for alteration to a non-conforming structure under 2410.2A. The accessory structure is in the front yard, so it's non-conforming in that sense, though we're not seeking a special permit relative to it. Um, we're also seeking accessory structure in the front yard
under 241.4A1, and that's for the pool, the cabana, and the sports court because, believe it or not, right here is technically the front yard. Um, and we're also seeking a special permit for alteration to a land form within a flood
zone per section 247.3C. So, as been noted, the existing carriage house uh is non-conforming. It's presently located in the front yard of the primary dwelling, but it's over 240 ft from the street. Um, there's no further changes being sought to that at
this time. The applicants have proposed new accessory structures being a pool, a pool cabana and a sports court which are as noted in the front yard. Um although they are more than 500 ft from the street frontage. The cabana is not habitable space uh does not create any
new bedrooms and will be tied to the primary septic system. Uh the cabana has a ridge height of 21 ft 10 in. And in connection with the landscape design and in these structures, uh we're proposing to bring in fill to soften the current severe slopes on the property.
So this is going to result in a much more modest step down from the main house down to the pool, patio, and cabana area and then a further step down down to the sports court. Uh the first step down will go from about elevation 24 to about elevation 20 and the second step down will go from about elevation 20 down to
elevation 18 or so. Phil will allow the site uh to be terrac uh to ease those existing slopes. Uh it's been conveyed to me that less severe slopes are better for wave action in the event of a significant storm. The proposed accessory structures
will all conform to setback and lock coverage requirements. Uh the total lock coverage by structure will be only 7%. Uh lock coverage by structures, paving and parking will be 23.6%. Both of which are well below the 20% and 40% allowed by rights respectively.
So, the requirements for all these various applications, um, under 240 10.2A, pre-existing non-conforming structures may be changed by special permit provided not substantially more detrimental than what exists. And you're asked to consider whether or not there's any new non-conformities created. Uh, it impairs views and vistas and reasonably
conforms to the neighborhood. And in this case, as noted, there's the only non-conformity that exists is the carriage house, which is not being changed. Um, and it's well over 50 feet from the street. There's no change to views and vistas and arguably conforms to the
neighborhood. With regards to alteration of a land form within a flood area under 247.3, board should find in the granting of a special permit that uh it will not result in increased flood heights, additional threats to public safety, extraordinary public expense or conflict with existing bylaws. In this case, uh
the property is located uh on an ismas surrounded on a requisite harbor on three sides. uh any fill that was brought in will not increase potential flood heights, create any threats to public safety, have any sort of public expense, or conflict with existing bylaws. This proposal has already been reviewed and approved by the
conservation commission. Beyond that, both of these sections also rely uh on 240 12.1E and since the accessory structures in the front yard under 240 11.4A1 for A1 I don't have any specific requirements
that 12.1E also also becomes the dispositive consideration for that application. So the overarching question there is does the proposed use have an adverse effect that overbalances its beneficial effects on the neighborhood of the town and now you're asked to consider
there the adequacy of the site size for the proposed use the suit suitability and uh whether or not it's well situated for the proposed use. Again we are 4.4 4 acres, very low lot coverage by structure, very low lot coverage by structures, paving and parking and and fairly isolated. Um, so I think it is
more than adequate in size and suitable and well situated for those uses. There's no impact on traffic or safety, same use as a single family residence, just better utilization for the applicants. There's more than adequate methods of sewage disposal and drainage. Uh, utilities and public services are
already present and again adequate and there's no impact on the supply of affordable housing. So under this proposal, there's no new non-conformities created. Um there's no adverse effects here that have been balanced the benefits of outlined. And I believe this meets all
the requirements of 240 10.2A, 240 11.4A1 I, and 2407.3 C. So I'd ask that the board grant the special permit, but along with the rest of the team, I'd be happy to address any questions that you may have at this time. Great. Thank you, Mark.
We'll start down your end. I'm you know I mean they're going to improve the contours of the the buffering in a storm and uh I mean what I got to say you know after a hurricane they might have to retrieve their cabana in New Bedford but that's not my
problem. Um Mike Borcelli actually had some really great historical photographs of this from over 100 years ago that shows that that since that time that was that was tennis courts and gardens down there and it's been carved out. So we're actually kind of bringing it back to more how it was.
And then the terracing effect is going to be on the movement too. Not beautiful. I have nothing. Uh there's already a fair amount of material that's been deposited there. You're still sticking to no more than
7,500 cubic yards. Correct. I wouldn't want to cap it at 7500. That's the anticipated number. So, you know, anytime you have construction like this going on, there's going to be variables plus or minus. So I wouldn't want there to be a hard and fast condition that no more than but that is the anticipated
figure and that's what you discussed with the building commission and and and with and with conservation no it's a stellar project. No no no further questions. Thank you. Just to uh clear up a loose end under
section 247.3C um the board of appeals must consider that the alteration to the land form is the minimum necessary for the proposed use considering the flood hazard. Can you make a comment on that? I don't really know what it means, Frank. That would be,
you know, I mean, it's one of those things. I I looked at that and it's one of those questions. It's like, well, what's the minimum necessary? This is the minimum necessary to affect the change they're looking for. I guess that's part of the consideration. So, I think they're more concerned with taking away, not adding to in that. Yeah, that
would be my guess. Sure. I'm right. But I was there testimony about the contour being improved and that will decrease wave action. I think we're covered. Yeah. And conservation was had really surprisingly very few questions about it. I was there today and I saw that big pile of dirt and it's huge. Yeah, I
agree. You all set, Frank? Yeah. You all set? No questions, just a comment. I think the first time I ever saw this property was sailing out of Woods Hole and it was beautiful then and it's going to be even better now. It's a beautiful project. Tony, I do have a couple questions. Go
for it. The uh and I'm sure that attorney CL will answer them for me. I I just don't have the answers for them. Under uh 7.3C, the standard by which this board is to review the flooding issues. Here it says the standard no
alteration and you read this earlier. I already read it. No alteration of the land for uh form shall be permitted where there may be a risk of altering the drainage or runoff to the detriment of other land holders or the town before granting a special permit for the
alteration of the land form. the zoning board of appeals shall duly consider any recommendation made by conservation commission which I could not find or the planning board which I could not find and under 7.3C2 in findings
um the EBA must find the following special permit shall only be issued upon findings made by the zoning board of appeals that a this is on page 64 the granting of the special permit will not result increased flood heights, additional threats to
public safety, extraordinary public expense, a conflict with existing laws, and B, the relief granted is the minimum necessary. I have no idea what that means. The relief granted is the minimum necessary considering the flood. So, how do you pass that test uh for the
standard and then the conditions that this board must find and put into the So, what that's intended for is when you have a property that's surrounded by other properties. We have a unique situation here where we're surrounded on three sides by Quiset Harbor. So,
there's no increased risk of flooding to other properties that's going to result from this from this field coming in because the drainage is going to be towards Quissit Harbor. We're not going to be increasing the drainage going to Inquisit Harbor. It's going to be the same amount. It's just going to change its its slope. Um so
what that provision looks for is are you increasing potential flood on another property? We're not. And and I would argue that um it's very hard to change the flood volume of the Atlantic Ocean. So I don't think that whatever change we make here is going to adversely affect
Quissit Harbor or Buzzards Bay in general. So my question to that my question to that part is how does the board um and and I believe what you're say I believe that you're probably right but you're not an engineer. You're not we're going
to get to that. We're going to we're going to get to that. I would like to have this board have an engineer state why they can put this in the findings or whatever has to go into the findings to comply with both these sections. And I think that it's exactly what it says. It
has to be done. And maybe the engineer could do that. Any deposit is an improvement. Well, pretty much that simple. But it's just that this board has to put it in the findings. And all I'm asking, what is the proof? What is needed so that it can be put into the findings? And so
far, we don't have that. That's all I'm asking. I would just say that you do have testimony. My testimonies actually come from the engineer cuz that Mike and I discussed this earlier and those were his words, not mine. Including the Atlantic Ocean joke. I stole that from him. He wants to hear Mike say it.
Unless the board unless the board feels it shouldn't be. Chairman, members of the board, for the record, Mike Borceli, Felmouth Engineering, and I represent the application applicant. Um, we've had uh numerous conversations about this provision of the bylaw and the basic
premise of this site and the application of this fill in a flood zone is as I understand it is this. The landform where we're going to alter with the cabana pool and sports court is effectively a
bowl. There's side slopes on three sides with relatively severe slopes. If you've been to the site, you may have been concerned about traversing in your vehicle around because of how severe it is. There's vertical granite walls. Um, we think that was done at a time prior
to uh develop that lower area for a tennis court, ironically, and some ornamental gardens. But so with the with regard to placing fill in a flood zone, this is a coastal flood zone. And um
when you when you add fill in some flood zones, it can have the effect of diverting flood waters. It's it's not typical of this. It's more typical of like uh freshwater river flooding. So uh
adding fill to this bowl to take the steeper slopes and make them less severe. While it does add some uh fill, its effect is not even measurable uh with regard to uh displacing Quiset
Harbor and Buzzard's Bay because it's it's just dimminimous and the bowl effect is such that any flood waters that went in are not being deflected to a neighboring property. Um um that's the
best way I can portray this. And we we half-heartedly joke that you can't really displace the Atlantic Ocean by adding fill. But I also joked about perhaps there's a dredging project going on somewhere else that's going to compensate for this
fill. So there's a net difference in the sea level rise from this fill. So it can't be dis it can't it's not being redirected to cause impacts to neighboring property because of its bowl like effect and it's not displacing and
changing sea level and causing flooding because of the placement of the fill. I appreciate that. Thank you. So that's your testimony that uh this board can rely on with regard to 7.3 C 7.3C2. All right. Thank you.
Nick, you all set? Anybody else have any further questions up here? No. Anybody from the public? So, just to confirm for the board, I know this is not a usual subject that you grant special permits for the
filling in the flood zone. It's not it's outside your typical jurisdiction. So, I did double check with the conservation agent today. They did look at this project very carefully. this is something that is more common for them
to look at and they have issued a um order of conditions and they're less fine with what's proposed. May I mad chair for May I just when you look at their findings and please excuse me
while I search this pile of paper I have here which is way too much um in their findings they don't refer to any of that uh they may have looked at
it but and please correct me um Norian if I'm incorrect but the findings do not report any of this whatsoever. And for some reason, I can't find that. If anybody has it, it'd be nice if you could show that the Hong
Kong decision. Compound decision. But the findings themselves uh do not have uh do not support any of this. Uh it didn't appear to be their major concern. And I'm sure that we have
a copy. I just read it uh a copy of that those findings uh in our files. Here we go. So, and that is findings. So, so the concom has four findings. None of which, and again, I
may be reading this wrong. Please excuse me if I am, but none of the four findings, which is where I went to, speaks to this flooding issue or any part of this. So, I can tell by the look on your face you're going to tell me something that I'm missing. I would just
say, you know, Concom tends to be um a hearing where much of the work goes in before the hearing itself. So, there is often usually a lot of collaboration collaboration between the engineer um or the engineering team in this case and
the conservation agent. So, I know that there was a lot of conversation with Miss Lincoln about this moving forward. So it may not be borne out in the findings, but but it h it was a significant point of discussion which I think is reflected Norine's conversation with Miss Lincoln today. All right. I'm
just pointing out that it's not in the findings. So this board I suspect and again I'm not an attorney so you can correct me on this has to rely on the engineers testimony here tonight to go into the records if I'm correct. And Norin has spoken within Right. And I I
think the other issue is that what is asked of the zoning board is not duplicative of what's asked of conservation. So in other words, they wouldn't have specified in their decisions, which I think are maybe a
little bit less lengthy than ours, that they would make the same findings that we do. And like I said, given the unusual nature of this request, I felt it was a value to just confirm with them that there were not issues of concern
that would affect your thought in your vote decision. Yeah. Thank you for doing that. Any other questions, Tony? You good? None. Thank you. Everybody good up here? No one from the public, right? Motion to close, Madam Chair. Second. Motion to close in a second. One last
chance. Everybody's good. All those in favor of closing. I oppose. None. Motion to approve of conditions. Second. Motion approving. All right. Frank, take it away. Property is in an IRA zoning
district. The overlay district of the Quiset Harbor Coastal Pond Overlay District and the National Heritage Endangered Species Program. Sub has jurisdiction. Um the flood zones are VE16, VE18.
Um the street frontage is 88 ft and 100 ft foot requirement. The lot size is 1 175,986 ft which is equivalent of 4.04 acres. 40,000 ft is required. Uh the existing single family
dwelling in the carriage house is 10,280 ft. The proposal is for a single family dwelling, the carriage house, the pool, the cabana, and the sports court, which will have a footprint of 12,329 square ft. The carriage house exists uh as a
non-conforming structure. It's in the front yard, but it's more than 50 ft from the uh street and apparently was built before there was a requirement for a special permit for uh structure in the front yard. Lock coverage by structure
will be 7% uh the limit is 20% lot coverage by structure parking and paving 23.6% 40% is the noted limit in the zoning bylaw. Um other than the nonconform in nonconformity of the
carriage house uh there are no noted dimensional require excuse me dimensional nonconformities on the existing property. I've read into the record the uh referrals from the various departments and note that the conservation commission issued an order
of condition approving the project on 4225. Um the uh 10.240 10.2A 2A for non-conforming structure which these uh proposals will be the non-conforming structure and uses
may be extended or altered or changed shall not be substantially more detrimental to the neighborhood uh than the existing non-conforming structure or use and we so find um the um setback the the requirement for a
special permit um for a structure in the front yard is 24 11.4A1 4A1 of the FASA zoning bylaw the setback from the street frontage um for a structure in the front yard not less than 50 feet from the street we find that the property is appropriate to
grant this relief as with respect to the alteration of the land form under section 247.3C of the FMA zoning bylaw we are able to make a determination that the alteration of the land form will not propose a ri will not propose a risk of
altering the drainage or runoff to the detriment of other land holders or the town. Um, and that in applying, excuse me, and in uh considering this application for a special permit, this board has considered the recommendations of the conservation commission and the
planning board. Also, the board is making a determination that the granting of the special permit will not result in increased flood height, additional threats to public safety, extraordinary public expense, or conflict with existing existing bylaws. And as testified, the relief granted is the
minimum necessary considering the flood hazard. With respect to a special permit overall, section 2412.1E of the zoning bylaw provides that the zoning board of appeal may grant a special permit upon a determination that the proposed structure and or uses will not have an
adverse effect which overbalance a beneficial effect in the neighborhood and in the town that the site is adequate for the proposed use. It is suitable for the proposed use. there'll be no impact on traffic flow and safety. There's uh sewage is is sufficiently um
there sufficient sewage disposal. There are adequate utilities and there's no impact on affordable housing. All right, Frank. Uh do we need to say anything about the moving of the 7500 cubic yards or Well, we granting the
special permit under estimated right under two. All right. 2414.5. Okay. You did certification historical. I I put it as as a referral. Yes. Okay. I I read it into the record during the
opening. Okay. Good. All right. Conditions. Um where's my condition pile? Uh per plans all boards. Um, construction hours, standard
construction hours, docy compliant lighting. Um, did I say per plans? Yeah. Anybody else have any other? We're not going to put any conditions on the earth moving. No. No.
Anybody got any other conditions? Uh so just engineering had um requested that there be posting of the address at the street. Sure. Yeah. So just all boards,
right? That'd be a weird line for me to draw in the sand. Everybody all set? Yeah. All set to vote. Yeah. All those in favor? I oppose? None. Thank you all very much for your time tonight. Thanks for letting us drive out there.
All right, we have one last hearing. 282585 Winslow Road, Clemens, which was not staked. So, we're looking to continue. Good evening. Hi,
Doug Clemens. I'm the owner at 85 Winslow Road, which wasn't staked when we went out. So, we have to continue it. Uh, so if I can address that. Sure. I agree. Uh, both Mr. Duffy and Mr. Peterson came to the property and it was
not staked. I apologize for that. Um, and I know it's a condition of the board to hear the uh, appeal. It was difficult to get my uh, surveyor out there. Um, he did the best he could and showed up
yesterday. the property is staked. I had pictures of it to help you. I know that Mr. Duffy and Mr. Peterson walked the property versus saying it's not Well, Mr. Peterson in the rain decided not to walk the first time and then when he came the second time, uh I he brought
his umbrella. Well, no, it was it was a beautiful day and uh the the uh footprint of the proposed garage I staked myself. Um, and it was good enough that actually the surveyor uh basically just ribboned the stakes that
I put out. Um, and it's staked now. It's not a complicated project. I understand must be done seven days before. We can't change it for anybody. Okay. Yeah. I I appreciate your time and I mean it's the first page of the application. I I I'm not here to argue that. I'm just hoping
in faint hope that knowing that it is staked and I did satisfy all the requirements not in the timeline that's specified that possibly you could uh take a look and make a ruling. But if if you need to continue then you need to continue. We're going to do it pretty quick though.
Um anybody want to give me a motion to continue to June 5th, right guys? June 5th. What day? Yeah. June 10th. June 5th. June 5th. June 5th. Motion to continue to June 5th. Second. We have a motion and a second. June 5th's okay with you?
Yes. Okay. Good thing you didn't say no. All those in favor? I oppose. None. We will see you then. Keep an eye on them though cuz we're going to go back out. Yeah, it's it's all stakes wander. So, keep an eye. Oh, I that's what I hear.
Yeah. Thanks for your time. Thank you. Have a good night. All right. What else do we have on here? Minutes. Um, so we are tableabling those.
All right. Sorry. Works for me. Updates. Did you type form or you just going to do a list? I did not, but I will. I'll just run through them quickly. Yep. Uh, 13 Cricut uh reduced. It was a replace raise and rebuild that you had done. We
did that. They wound up reducing their footprint by 36 square feet. So we granted that 79 Meadow Neck Road, reconfigured uh deck, changed the dormers, and changed a bedroom on the
second floor to be a great room. We approved that. Uh 26 Sycamore was extending a second floor deck to the north by 5 ft. Four Passet removed a shed and instead added a closet to their
home. Uh they removed a westerly deck to expand their kitchen out slightly. 366 Marav Vista reconstructed stoops uh to add a roof. They took out their chimney, added in instead a gas fireplace and a box
window. And 192xit um chair signed the administrative approval to slightly shift the um new dwelling on that lot to be slightly more conforming and more out of the water. So
no slacking from Norine. Thank you. Board discussion. Anybody have anything? We had a meeting a couple of weeks ago and we passed out a lot of stuff there. I stood ready to be the timer tonight.
He was ready and prepared, too. Um, board updates and future agenda items. We're good. Our next meeting is June 5th at 6. Mark motion to adjurnn. Second. All
those in favor? I I