Okay. Welcome to the zoning board of appeals. Please silence all cell phones and note that this meeting is being taped by FCTV. If there's any private party recording this hearing, step up to the podium and request permission. And I'll introduce the board. On my far
right is Mark Fineran, a voting member. To my closest right is Frank Duffy, our clerk. My name is Suzanne Murphy, chair. To my left is James Moss, vice chair. To his left is Tony Patuuchi, an associate, and Nick Haney, another associate. And then we have Noren Stockman, our zoning
administrator, and Ashley Dlo, the office assistant. The zoning board of appeals is charged with applying the state zoning statutes as well as the town zoning bylaws in reviewing and voting on every 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 decision discussion of the project prior to closing 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, but the time may be extended by a vote of the board. The board will then question the applicant. Four, the public will be invited to comment. Comment
should be limited to two minutes and be strictly related 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. It will not amplify your voice and record audio for
FCTV viewers. And before we start, we have a time if anyone wants to come up and make a public comment with nothing that's about nothing that's on our agenda. You're welcome to come up. Anybody? What do we have today?
We're ready for the traffic to go. Tell you that much. All right, I'm going to take one out of order because it's a um I'm going to go to If you have an agenda, I'm taking the second one out because they're withdrawing. So, I just want to kind of get rid of it, I guess you'd say. Uh it's 209 Courier Road. Uh
they're they're just withdrawing. I need a motion from Madam Chairman, I'll make a motion to allow withdrawal without prejudice of hearing 03525. Andre, trustee of 209 Courier Roadies Felmouth without prejudice. Second. We have a motion and a second. Everybody
all set. All those in favor? I. Tony, you're at first. You and I. I'm an I. Yes, we got it. All right. Next up is nine sycamore. Hula D'Angelo.
This has been opened. Open. Um, good evening, Madam Chair, members of the board. For the record, Kevin Clower. Uh, just a point of clarification. I see that Mr. Peterson is not here tonight. Will one of the associate members be appointed as a voting member? Yep. Nix it back. We were alternating
between the two. So, thank you for having us here tonight. Um, as you know, I'm before you representing Mario Kula and Josephine D'Angelo, the owners of 9 Sycamore Street, who are both with us this evening. Uh they're seeking permission to raise and rebuild of the single
family dwelling uh on this property which is located at the southern end of the Marav Vista Peninsula. It's an RC zoning district in the VE15 flood zone. You might have to speak up a bit because of that air conditioning thing. Uh at the last hearing, there was a question presented as to whether or not the board could make a finding that no
special permit was required. Um, under 240 10.2B1D 2B1D of the zoning bylaw. It states that uh exempted from requirements of a special permit is alteration or reconstruction of a non-conforming single or two family
residential structure where the alteration to the non-conforming structure um will comply with the zoning bylaw and not increase the habitable space. There was some question presented by
Butters and council as to the calculation of um of that habitable space. So the law comparison worksheet which is what we typically use uh refers to gross floor area. That's what the board requires in those situations. The
bylaw refers to habitable space which are like two separate things. So gross floor area is defined as the sum of the horizontal areas of all stories of a building measured from the exterior faces of exterior walls. That's the calculation that was used again in that lock comparison worksheet. And again,
however, habitable space is what's referred to in that exemption. Habitable space um is not defined within our bylaw. Um, so the next provision of the bylaw, 2431A3,
states that terms not defined would be interpreted by consulting a number of resources, including the state building code as amended. Per the most recent version of the building code, habitable space is space in a building for living, sleeping, eating, and cooking, but excludes bathrooms, toilet rooms,
closets, halls, storage, utility spaces, and similar areas. So under gross floor area, the existing is 858 square ft and we're proposing 842 ft which is shown
on this area plan. This is the proposed showing the two calculations of the interior space and then the 858 square ft here. But that's under the gross floor area. Under habitable space, it's a measurement again of rooms and buildings for living, sleeping, cooking, and
eating, excluding bathrooms, toilets, closets, halls, and storage. So here what we have is a breakdown of this by room by room. And I realized this is small. So I've
extrapolated it out here. Under the existing, there's a total of 720 square feet. Front sitting area, the living area, two bedrooms. That excludes the back entry, the space between the kitchen and the bathroom, which is a hall of sorts, the bathroom, and the front closet.
As proposed, it's 570 ft of habitable space. That includes the three bedrooms, the living area. What it does exclude is the ground level which is not habitable by definition for FEMA compliance. It excludes the first floor closets, the bathrooms and the second floor bathroom.
So whether this is calculated by gross floor area or habitable space is still proposing less than what exists and therefore meet the requirements set forth in 240 10.2 B1D. Mr. Street's position that it requires 5,000 square ft is unsupported by the
bylaw or state law. those references pertain to unconstructed lots, not lots that are already constructed and structures that are already existing protected by their non-conforming status. So, as we left it last time, I think the board was considering whether or not you can find um that a special
permit is not needed. So, I think that's the first question that needs to be addressed and then if you find that you can make that finding and are willing to do so, great. And if not, I'm happy to proceed with the special permit application portion of our presentation.
Okay. Do we want to go to Norin for this? No pressure. What can I offer you? Do you have another suggestion? I look at the determination as to whether things buy right or not. The sole purview of the building commissioner and if the parties agree,
that's when an appeal is proper. So, I don't I think at this point the board should be taking this as an application for a special permit. Jim, I'm just I'm having trouble hearing. I'm sorry. I I stated I believe that the building commissioner is is the one who needs to make determinations as to whether or not something is by right or not. Uh parties can certainly appeal if
a building if a uh building permit is issued. This needs to be treat I prefer to take this as an application for a special permit. Yeah, I don't think it was advertised any other way. It was advertised for special permit, but he does say in his memo of June 4
that uh he cites chapter 48 section 6 saying that you have to have 5,000 square feet and he says I forward this to the zoning board of appeals for a determination. I think he's asking us is this a buildable lot? No, it's already got a structure on it.
So does have it. Yes, we're we're not looking at buildability. What we're looking we're looking at is is there a special permit required or is this eligible for a building permit because it meets the confines of Mr.
Clower has explained that the habitable space is the same or less than what exists. So, I think he's trying to demonstrate to the board that he feels that it should be an as of right building permit versus requiring a
special permit. I agree that it's a buildable lot. Um, but I'm not sure that the building commissioner knows. Well, so we're not looking at buildability because there's already a house there. Yes.
So, it's clearly buildable because there's a house there. So now we're just talking raise and rebuild. Clearly in this town there is no protection on any lot under 5,000 ft. So we need to proceed as Jim said
Jim said well I'm not sure that that's correct either because there's already a house there. So it was built at one point when it was plowed. So it remains a buildable lot. But if you want to proceed with a special permit, I'm not saying I'm not
You got to get a permit to do anything. Yeah. So, there is a differentiation where if you have a lot that is undersized and it's um not improved, so there's no house, it's looked at differently than if there's an existing house.
That's correct. That's true. Leperus is requesting to be heard. You want to come up? Well, I I don't if if my prime minis was done, I come up to the microphone so everybody can hear you. Well, I I just think before we debate this completely, I'd
like to give you uh the utterance side of that issue. Um we were here I don't even know what issue we're on yet. We're still doing the There really isn't. This isn't the time for this, I don't believe. No, he's doing the special permit. I'm I'm I'd only like to address the
exemption part of this and then we can go forth. Uh Christopher Levers, I'm representing William and Judy Flynn, the a butter at 407 Marav Vista. Um I'm sure the board recalls that we were here in May
and there was some discussion about Mr. Street and his position. What was not made known at that meeting was that this project was reviewed by Mr. Street back in October of 2024.
And he wrote a letter to Mr. Cula, the owner of the property, and he said, "Thank you for contacting our department the other day for clarification on the action you should take moving forward. We have reviewed your project
and due to the area of your lot being smaller than the protected size per master 48 section 6 5,000 ft your project will require ZBA approval.
He clearly said this project needs approvals from this board. That letter was not brought to the board's attention when we were here in May. The memorandum that Mr. Duffy is referring to tonight
is sort of a a followup to that. Um where again he he doesn't say approval in this particular memo, but he says again back to the board of appeals for determination. The presentation that Mr. plow just made
to you was wonderful, but he's making it to the wrong audience. He should have been making that pitch to Mr. Street because it was Mr. Street's call as to whether or not this project needed ZBA approval and he clearly said it needs
ZBA approval. uh he apparently is basing it on the fact that the lot is smaller than 5,000 square feet and he's more or less indicating in his memorandums and his letters that's a lot as Mr. Ferin has
just pointed out gets no protection under the law. I appreciate there's a house on it and you know what happened back in 1940 or 1930 or whatever. God love you, but a tw a 2900 square foot lot doesn't get protection under the
state law or under our zoning bylaw. But a whole argument relative to the to the pros and cons of the exemption really is moot because this is not an advisory board. This is not an advisory and we shouldn't
really be guessing here tonight that maybe Mr. Street wants us to determine whether this is a buildable lot or a non-buildable lot. That's that's not the function of this board. This board under chapter 4A section 14 has very clear
authority. Special permits, variances, 40Bs and and appeals. the very same language more or less in our zoning bylaw. It is not properly before this board to come in and say we're applying
to you as a board, but we don't think we need to be here before the board. I'll I'll I'll point this board to the publication and why all of the public is here tonight. We were notified to come in and hear a special permit application. That's what was published.
This is not correct to be making a determination of any nature whatsoever that you disagree with Mr. Street referring it to this board for approval. There is a process for that. You appeal his determination. We all understand
that because you've all sat on those types of hearings before and Mr. Cloud was aware of it. They knew back in October they were being referred to this board to seek approvals. They didn't appeal that determination. They more or less come before you appealing for the
very uh relief that they felt was appropriate, the special permit, but by the way, they're coming in and saying, "But you know what? We disagree with Mr. Street. So, can you just maybe tell maybe just not require us to even be here?" That's not properly before the
board. It just isn't. So, I I I think this hearing needs to go forward. I I I think just just to be clear that's I thought if I wasn't clear the direction I think we're going I think what's on our agenda. I hope you can appreciate while you're
debating the topic and the presentation is rather one-sided. I I wanted to at least be able to chirp in just a bit. May I just ask a question? Go ahead. Who has the authority to determine whether this has to have a special
permit? Who has that authority? It's very clear. It's the building department. It's Mr. Street. It It's not up to this board, right, to make that decision unless Mr. Street's decision is being appealed. And it's not being appealed. He made the decision and there's nobody here tonight
appealing his decision. Thank you. That's right. Town council, would you like to weigh in? Thank you, Attorney. Thank you, Madam Chair. Maroke Town Council. Um I appreciate the question uh
about whose responsibility that is. That is a question for me to answer and not for um an attorney for the um applicant or an attorney for the abuter. That question really should come to me and I'm happy to answer it. Um the building
commissioner's responsibility is to evaluate the zoning code when an application comes in and either determine that a building permit is required or deny the building permit. hear what happened. Um, and the zoning board's responsibility is to, as Mr. as
attorney Lebert said, is to consider um requests for variance, requests for special permits, and to hear appeals from the determination of the building commissioner. This board has no authority and no responsibility to in
the first place make a determination that no special permit is required for a special permit application. There are two choices for the board. Either approve the special permit or deny it. So here before you you have an application for a special permit and you
evaluate it on its merits based on the facts and based on the law and either issue the special permit or deny that. Um, I'm happy to provide you with more guidance on that on the next part of it or I I see we're doing this sort of
piece by piece. I'm happy to circle back with you when you start addressing whether these exemptions apply or not. Um, whether a section six finding is required uh or I'm happy to answer any questions. Okay. Thank you.
Okay. So, we're just going to proceed proceeding by special. Yeah, that was pretty conclusive. Do we need to vote on it? No. No. I would suggest they can go action. So, um, as I mentioned, we'd be happy to
move forward with the special permit application. So, we appreciate the board's consideration of that question. Um, I think it's an interesting question and but I certainly respect the opinion of town council um as well as Mr. Street
here. So, we are requesting a special I'm going to have to speak up. I'm coming. So, we are requesting a special permit pursuant to section 240 10.2A 2A of the zoning bylaw. The board has previously reviewed an application for this project originally in 2022.
Um revised plans were submitted but withdrawn in 2023 and since then significant changes have been made to the application in an effort to address concerns of neighbors and comments of the board. Some of these changes have been more successful than others. Joe and Mario purchased this property in
2022 seeking to make improvements and has been used by the applicants and also as a rental. Dwelling was built in 1940 and as with any structure of that age, it needs upgrades. This is in the VE15 velocity zone. So, the improvements should comply with FEMA in the building code
regulations relative to substantial improvements. Compliance with the flood zone standards requires the bottom of the joist supporting the first floor of habitable space be at least 2 ft above the flood zone, which in this case is elevation 17, approximately 11.6 ft above grade.
Currently, there's a one-story dwelling and shed footprint is 1,025 square feet, and the lot is 2,932 feet. It's presently non-conforming. Front yard set back 1.1 where 25 is required. Sideyard set back to the west
6 ft where 10 is required. Lock coverage by structure being 35% where 20 is required. Uh 20 is allowed by right and up to 25 by special permit. and lot coverage by structures, paving, and parking is presently 46% where 40% is allowed by right.
There's also no parking that's not within the street layout. What's proposed is a dwelling that reduces the clutter on the lot, eliminates the existing shed, provides sufficient parking on site. There'll be three proposed bed bedrooms, which is an increase of one over the
existing, but this is on the Little Pond Sewward District, which allows for four bedrooms by right. And the proposed structure is significantly smaller than what exists. The footprint is 586 square ft. It eliminates all existing non-conforming dimensional um all all
existing non dimensional non-conformities. The front yard setback has improved from 1.1 ft to 25.6. The sideyard setback to the west has improved from 6 ft to 11 ft. The rear yard setback remains conforming at 10.2 ft.
The sideyard set back to the east remains conforming at 11.4 ft. The lock coverage by structures eliminated as a non-conformity. It's decreased from 35% down to 20%. And the lock coverage by structures paving and parking is eliminated as non-conformity as well, decreasing from 46% down to 40% uh
38.9%. So this would require a special permit pursuant to 240.2A 2A for pre-existing non-conforming structures changed by special permit which can be done provided the board finds the not substantially more detrimental than what exists. You're asked to consider the
standards of 240 12.1E and whether or not the new dimen uh new alter the alteration creates any new dimensional non-conformities impairs the views and vistas and reasonably conforms to the average dimensions in the neighborhood. Here there's no new nonconformity created. All existing dimensional
non-conformities are eliminated. The only non-conforming aspect of this is the lot size. We did com prepare a lot comparison worksheet looking at 37 properties within a 300 foot radius. This is a very dense clustered neighborhood and the proposed dwelling is below the average footprint and gross
floor area in the neighborhood. The home is designed to uh try to observe the privacy of the neighbors with appropriate setbacks while complying with FEMA regulations. In terms of average dimensions, it is very much in character neighborhood. Um the only difference being this would be
in flood zone compliance. There are many similarly sized and larger homes, many of which have built today would face similar requirements. I'd like to address some of the correspondence that's been received by the board and directed at the applicants. Few of the letters refer to the 1986
denial of a special permit stating that a second floor was inappropriate for this lot. There's a few things to consider there. That proposal was for a second floor that was less than 1 ft from the property boundary to the west within the existing footprint and the property was not then located in a velocity zone.
One letter said that we were directed by the town to phase construction which is simply not the case. Compliance with the flood zone requirement should be encouraged and incentivized. It should not be punished. The position of town is not and should not be to force phasing within a velocity zone.
There's a recurring idea in some of the correspondents that these aren't homeowners, that the commercial investors, which is again simply not accurate. It was purchased with an investment mortgage because that's the business that the uh applicant is in. However, it was intended as a rental until they could undertake the renovations at which point there will be
a refinance and a construction loan. The refinance has already taken place. It's refinanced as a second home. This is intended for the use of Josephine D'Angelo and will be her retirement home. Since it is has been refinanced, there's no prohibition on use. Either way, it
should have no bearing on the merits of the application. One letter said that this would be the tallest building for miles, which is so wrong as to be laughable. Just within sight of this property, uh 76 men at 32 ft, 32 sycamores at 32 feet, four four
Marav Vistas at 33 feet, five armor at 34 1/2 ft. And that's to say nothing of the homes along Manat. It's posited that the increased hard uh that that we would increase the hardcape which would have negative effects, but we're decreasing lock coverage by structured paving and parking which is
going from 46% 46% down to 38.9%. It was also a joint letter that was submitted earlier this week which while well while well well written and persuasive is incorrect on a number of fronts. I've addressed uh the calculation of habitable space already.
I won't re reiterate that states that the size of this lot is not adequate for the use as it exists today. This is a single family home. It's proposed as a single family home but with a smaller footprint and less gross floor area. It suggested that any alteration to a non-conforming structure would comply
require require compliance with lot size. I'll admit that our bylaw could use some improvement, but it's clear that a reading of the bylaw that suggests that any change to a non-conforming structure would require that the lot size come into compliance with a 40,000 foot minimum is as wrong as wrong can be. It
would render most of this town no longer buildable. If that was the correct interpretation, what was correct in that letter is that we met with the neighbors in July. We had a discussion about the plans, where they were, where they have been, and we were presented with a sketch plan
by the neighbors of what they'd be willing to support. But they weren't open to any divergence from that sketch. We did consider it. We met with architects to discuss that sketch. The pres proposed design wasn't workable from an architectural or structural standpoint. Those meetings continued up
until late last week. However, we communicated this to the neighbors through their council. And while I do greatly appreciate the willingness of the neighbors to meet, which I expressed to them a number of times throughout that process, I do bck a bit at design being dictated by by a buttersto
project. The board has recently approved other projects very similar to this. 72 men was just before this board in January was allowed to be raised and rebuilt with a ridge height of 34 ft 10 in, but it's not in a velocity zone, so there wasn't elevated on pilings.
Last fall, 26 Deacons was a raise and rebuild on a 3,000 foot lot, maintaining non-conforming front yard and sideyard setbacks as well as non-conforming lot coverage by structures and by structure and by structures paving and parking. That was approved by this board. Most
recently, um on Melrose Avenue, a 3,000t lot was uh with a with a garage was allowed to be raised and rebuilt as a as a conforming home, much as this would be. As discussed, this application does not create any new dimensional
non-conformities and eliminates all the existing non-conformities. Based on that, the proposed structures not substantially more detrimental and with flood zone compliance and the elimination of the non-conformities is a significant improvement. The board's asked to consider those factors and also whether the proposal
has adverse effects that outweigh the benefits. As consideration, you're asked to look at the site um size of the site which while undersized by today's standards is adequate for the proposed use. There's no change from the current use as a single family home.
Site is suitable and well suit situated for the proposed use. Again, there's no change from current use as a single family home and the proposed structure will eliminate all setback and lock coverage issues. There's an improvement here to traffic flow and safety. We're providing on-site parking where none exists.
You're asked to consider the impact on neighborhood visual character. While this structure is elevated, there is compliance with flood zone st requirements and that should not be viewed as a detriment as it runs contrary to public policy. There's more than adequate methods for sewage disposal and drainage. It's connected to town sewer and providing
drip strips and on-site drainage when none currently exists. Utilities and public services are present and more than adequate. And there's no impact on the supply of affordable housing. It was suggested in one of the letters that this would have an impact on starter homes, but this is a home that's three blocks from the
beach. This is not, was not, and has not ever been a starter home. In a recent application, we discussed how a proposed structure meeting all setback and lock coverage requirements was an incredibly rare thing. And board members discussed how they didn't feel they could vote against it when it met
all of those dimensional requirements. This is no different. Here we have a proposal that's not substantially more detrimental than the existing structure to provide benefit in eliminating all of the existing dimensional non-conformities and complies with flood zone requirements. The applicants and their team have
worked hard to find ways to reduce the scope and the impact of this project to reduce the potential effects to the abutters and to respond to comments from the town. I believe that this board can and should grant this special permit and I'll be glad to address any questions that you may have at this time.
Thank you. Is it okay with the board if attorney Leitz comes up and then we'll ask our questions? Is that okay with everybody? That way we can hear both if that's okay. Thank you.
I listen to Mr. CL's presentation. But the one thing that he left out was this is a much larger structure than what's existing. Much larger. the the presentation
seems to be going in the direction of habitable space and we just went through that whole discussion. But the cases, the bylaws don't talk in terms of habitable space to determine if something is more non-conforming or an
intensification. The case of Borland versus the town of Norwell dispels anything along those lines. Bjorkland was a case where you had a house on a 34,000
square foot lot, but it had a front yard encroachment was too close to the the road. There was a there was a nonconformity. And the application in that particular matter was to tear down the house and rebuild and meet all of the setbacks and lot coverage and whatnot. But the house
was going to be bigger and the both the zoning board and the Massachusetts Supreme Court said because it's a larger structure, it is a greater intensification. It is a
more nonconforming use than the prior use. So when you have a small lot and you make a bigger structure, the law says it's more non-conforming.
It's crystal clear. That's what the case says. No, uh, excuse me, Bjorkland versus the town of Norwell. But this particular site has history also before the board.
And it wasn't your current owner. But in 1986, there was a decision that there was a filing where the applicant sought to put a second floor on. Tonight, the applicant is seeking a
second floor and then a third floor and a flat roof because you really can't go any higher than they're asking to go. But in 1986, the application was only for a second floor
and the zoning board said no. and it said, "The existing non-conforming structure is located on a lot that only contains 2876 square feet. The addition of a second floor onto this structure, which is too close to its lot line,
would have a negative visual effect on the neighborhood. The lot already has the appearance of being overcrowded, and the board finds that adding on to the structure would be substantially more detrimental." I don't think anybody can seriously
dispute that although this building apparently needs setbacks and apparently there's a a habitable space argument here to be made. I don't think anybody could seriously dispute this is a much larger structure. This is one level to
three. We had a problem with two levels back in 1986 and that was determined again to be uh to have a negative visual effect on the neighborhood. Now we're talking about three levels
and the neighborhood hasn't changed that much since 1986. We were before you just a couple of years ago in bear with me here in u 2022
and we had a an application not unlike you have before you tonight. Some some slight differences but it was a again a threelevel structure. It was not received warmly, not at all. And the
board was in the process of voting to deny it when Mr. Clower asked for permission to withdraw the application. And by a 4 to1 vote, that was granted. But that ship was sinking that night. And it was sinking for the very same
reasons that I'm espousing here tonight. It's just too large. Period. There's just no other way to say it. The applicant is seeking
a special permit and it's claiming to be pre-existing, non-conforming, and uh seeking to extend, alter, or change pursuant to 240 10.2A. And I I hesitate. I almost don't want to throw the board a curveball, but if you
actually read Mr. Street's memo and understand his logic, he seems to be saying the lot's not even protected as a pre-existing non-conforming lot, at least pursuant to 486. I guess his his his letter speaks to it being
pre-existing non-conforming, but it also speaks to it being not protected. I'm not going to make this argument tonight, but I'm going to shoot a a shot across the bow. I'm not even sure this qualifies for a special permit. This may require a variance because if you follow
the building commissioner's logic, this lot is simply too small to to to be afforded the protections of a pre-existing non-conforming lot. But if you want to shove that argument, I'm happy to do so. And I'm happy to proceed
to to 240 12.1E. Some of the criteria that the board needs to needs to address adequacy of the site, suitability of the site, but most importantly impact on
neighborhood visual character. I just have a few pictures I want to show the board. Here's existing. Excuse me, I apologize. Here's existing.
There's your structure. My client's cleansing. That's your structure. It's a little really little place on a extremely little lot. This is what it looks like if you approve the application.
That's what's being designed. Hold it right up by the microphone so the audience can see it on TV. Perhaps you could come closer. I hate to see it. I tell you what, in just one moment, I'll I'll submit them to the board. And we went even one step further and I
suggest to you that this is going to be this area of town in 20 years with these types of applications. Yeah. Any questions? Frank, Yorkland is the case that really
applies to this application and it speaks to municipalities struggling with these issues where you have the small lots and then they I think they use the term
in that case the McMansionization this type of thing and I'm I'm certainly not suggesting that this is some grand majestic structure that's being proposed but it's the same logic how does the board protect these smaller homes small lot communities
because this structure if you use what I would suggest is common sense is about as about as not in keeping with the neighborhood as you could possibly close. I know there are a lot of other people
that want to be here tonight and be heard. I'm going to urge the board to deny the application basically for the same reasons that it was going to shoot it down in 2022 because really it's not much different and for the same reasons that a two
floor a twotory structure was denied in 1986. This is not one of those situations where we just look at this lot and say it conforms because of setbacks and lot coverage. You have to focus on and Borland tells you this. You have to
focus on the fact that this is an undersized lot. And in in Bjorkland, they struggled with it. And that lot was 34,000 square feet. This is 2900. Bjorkland versus the zoning board of appeals of Norwell. 450 mass 357. It's a
case from 2008. I'd urge the board to deny the application. Thank you. Thank you. We're at the board. will start to ask attorney Claw questions. If I could make a few quick points. Okay, go ahead. M madam chair.
Um, Borland's an interesting case and but the finding of Borland was that a special permit was needed because they didn't have an exemption in their bylaw and in that case the house was being proposed was six times larger than the existing house. Not you know this is gross floor area. This is the the size
of the house. That was that was the issue at play there. But the board found that the court found that a special permit was needed, not that one couldn't be granted. Um, Jney Leers referred to the 86 special permit decision and he even said it was in that case it was too close to
the lot line because they were proposing a second floor that was 1 foot from the property line to the west. Um, which I had mentioned uh that is in this case we're coming into compliance. And I don't think it's safe to fair to say that the 2022 application um was the
same because it was wildly different. In fact, um the 2022 application shown here didn't eliminate the non-conformities. The front yard setback was only going to be 7 ft. Sideyard was going to be five. Lot coverage was going
to be 34.4. Footprint was going to be,08. gross floor is going to be 1827 square feet. This is significantly bigger than what we're actually proposing today. We have shrunk, minimized, and done everything we can to
bring this into compliance here. providing parking on site, providing appropriate setbacks, providing appropriate law coverage uh to to address the shot across the bow, so to speak. Two, uh chapter 48
section 7, which was modified in 2017, states that a structure is protected after 10 years. This was built in 1940, six years after a building permit was issued and it's able to seek relief under chapter master under laws chapter 48 section six referring to
non-conforming structures and any applicable sections of the zoning bylaw relative to non-conforming structures. Our bylaw says the same thing just with the renderings. I would I would posit that those renderings are not exactly to scale. Um that said, I would now be happy to
address any questions that the board may have. Mark, you want to start off? Uh, I've heard plenty. I don't I don't really have anything at the moment. It is kind of hard to ask questions here
uh because there's so many facts. Um, Mr. Clower, uh, let's take a minute to think about that 1986 decision of the zoning board of appeals. I think you said in your initial presentation that in 1986 the FEMA regulations did
not apply. If this wasn't in a flood zone, it would have been an A flood zone. It wasn't changed to a V flood zone until 2014. Okay. So, there was no requirement in 1986 to elevate the structure. Not that I'm aware of.
Okay. But there is now. There is now. There very much is now. Okay. Um the other point I'd like to ask you to perhaps amplify for us on the uh Jorland case from the town of Norwell
which Mr. Leers has quoted. Um the there was a finding made that the increased size of the structure could result in a finding that the structure was more more non-conforming or perhaps more sub substantially more detrimental.
Um, was it the finding that it was or they that the board of appeals had the authority to make that decision? So that that if I can actually see this question to someone else who can probably address this much better than I, I'd like to do so.
All right. For the record, I'm Steve Borkman. So, I know a little bit about the case, probably more than anybody here would understand because I spent about 10 years trying to get the house approved up in Norwell. Um, and I don't want to go into the whole history of what
happened with the case. I actually won the first portion of the law case, lost the second portion of the law case. And it's my understanding from hiring the guy that wrote the zoning act, which is why I went this far, Peter Harrington, who wrote it for Barbara Gray. I went based on what he was
telling me to do in order to get the approval for that. But, uh, the attorney was correct. The lot's about 34,000 square feet. It was one of the smaller lots in that particular neighborhood. I tried to take a 600 foot house, take it down, meet all the setback
requirements, all the height requirements, all the lot coverage requirements. I met everything. The only nonconformity I had was the size of the lot. Before I before I did anything, the lot was 34,000 square feet. Once this house
got built, which the house did get built, okay, it's not six times larger. It's a little bit smaller. We took the family room off, but we went back to the zoning board of appeals and got the approval for a structure that is way bigger than 600 ft on this particular
lot. Uh, but the lot's still 34,000 ft. So, the nonconformity hadn't changed in that at all. So, as far as my case is concerned up there, you can make a determination whether they have or have not increased the non-conforming nature.
And with this one, I mean, I looked at this. I spent a little bit of time on this because I know this is a really strange situation. You have made determinations in the past when I went through some of your older decisions where you've allowed people on undersized lots. And I will tell
everybody in the audience, if you're on an undersized lot, you don't have to get variances, okay? You're going to be able to get special permits. So, if a storm comes in and wipes everybody out, don't worry about getting variances. It's a special permit, okay? And as far as special permits and findings are
concerned, this board needs to make a finding whether they have increased the non-conforming nature or not. And in this particular case, they have reduced three of the side setbacks to the point where they now meet all four setbacks. So that's three nonconformities that are
gone with this application. And they now are going to meet the lot coverage, which didn't meet it before. Now it does. So there's four nonconformities non-conformities that you're going to get rid of with this application. And Frank, you're correct. They now have to
elevate this structure. And if that storm comes in, everybody that's here, if they're in the neighborhood, are going to have to do the same thing because 50% of the of the value of their house, if they get wiped out in a storm, if they go over that 50%, they have to elevate. And I would think that this
town would want people to elevate in Felmouth on Cape Cod if they're in a flood zone. I'm sure that the applicant doesn't want to have to elevate for the flood plane issue, but he does want two floors on the house. So, I mean, I would
urge you to vote in favor of this. And I know it's tough for the neighborhood because they're the first ones in this situation, but if they get to the point where we have a major storm, I don't understand how their attorney could come back and argue that we need to elevate all these houses now because that's
what's going to happen. I mean, it's it's happening in every other town around. It's going to happen here. The Coonas just happen to be the first ones in this situation. So, and I'll I'll I'll answer some questions if they come back up again. Let me ask Mr. Clara though another question.
Thank you, sir. Thank you. If it just for argument's sake, this board finds that the proposed structure is substantial is more non-conforming than the existing structure. I get the impression from Mr. Lehers
that that is conclusive that we have to then determine that it is substantially more detrimental to the neighborhood. I think we still have discretion. I think you have discretion. I think you have quite a bit of discretion because what the Borland case that that cited says is that it needs a special permit
and it doesn't foreclose us from making it. It does not say that you can't issue a special. It just says you need a special permit. So that still gives the board the ability to make that decision. Is it substantially more detrimental than what currently exists? Thank you. All set, Jim.
Try cler. Just a couple questions just to make sure my notes are up to date. Um, what is the actual lot size? We've got I've got a couple different figures in my notes. I've got 2932. I've got 2876 and 2896 on a different paper. What What is the actual 2932 is the only only figure I've ever
given this board. Okay. Thank you. Based on our civil engineering plans, um, you're reducing down to a proposed footprint of 586 feet. Yes. And what is the actual ridge height going to be?
It's a 34. 34 even. Just going to pull it up so I can 34 ft. Even what's the height of the uh rail? That's 34 ft. Top of the railing. 34 ft. through you. Madam Chairman, I I have a
question for town council. Yes, Mr. Yes. I would ask you to weigh in on the issue of Bjorkland of whether or not we have the discretion to issue a special permit uh or not or we're required to make a finding. I mean, I've read I reviewed the Yorkland case
and their concern at the end about you know mansionization and I think that that is something the board has struggled with for some time. Uh at the same time I I would look that this might be somewhat distinguishable because what was proposed in Brooklyn and what the the court stated was that it was was proposed was a larger footprint whereas
here there's actually a smaller footprint but we are going up. Uh at the same time, I the other thing I'd ask just to kind of weigh in is that the board has always struggled and we've had many applications where uh FEMA flood compliance has caused what were very modest one-story homes to go up. And if
you look down all of Surf Drive, you can see buildings that have gone up that we've never punished anyone for FEMA flood compliance and that these neighborhoods are in transition. So, I guess I would like a little guidance from you as town council uh as to whether or not we have the authority or if this is something that does need to
be do we do we have the authority to make a finding that it is in fact less detrimental uh or is Borland conclusive or very persuasive that a denial is appropriate? So, Bjork I I'll try to sift through all of those questions. A lot of things as best I can and I'm going to miss
something so just remind me and I'll try to come back to it. Um the Bjorkland case is very helpful but there it's distinguishable. Um what the court said uh determined in Bjorkland and I have it here is that um the the sole issue
before the court uh in Bjorkland was whether the proposed reconstruction increases the non-conforming nature of the structure of the house. Um here uh there's um been an assertion that all of
the nonconformities that exist right now are being eliminated and uh this proposed structure, this proposed project will conform with all zoning and you just started to touch on that by
asking about the ridge height um etc. Um my understanding right now is that the nonconformities of the existing structure is that um the setback on the side and on the front are
encroaching. It's a lot coverage issue and an overall lot coverage issue as to paving, parking, and the structure itself. As proposed, all of those have been eliminated. So that part is
conforming. What you're left with, however, is the undersized non-conforming lot. And it's because of this because the con non-con because the conformities um the nonconformities, I'm sorry, have been eliminated except for the lot
structure. If you go through all of the exemptions in 10.2b, none of them apply. So that puts us back into the category of 10.2A1 where a not only is a special permit
required for this project but also a finding about whether it's substantially detrimental to the neighborhood. Um so that's the section that's what's echoed in chapter 48 section six. Um, I will
just also make a note that when this if this board gets to that point and agrees that not only is the special permit required because none of the exemp exemptions apply, but that the substantially more detrimental finding under 10.2A1
needs to be made. Um the sub the substantially more detrimental finding is only as to the lot coverage. It doesn't apply to any of the conformities that are would that exist
in the proposed project. You can't make a substantially more detrimental finding about an aspect of the project that now conforms. It can only be about the nonconformity lot coverage. Lot size. Lot size.
Thanks, Kevin. Thank you, council. No, that's it. No, that's I'm glad you uh corrected me on that. So, did I miss any Did I miss something or No. Okay. Thank you. I have no other question. Uh,
go ahead, attorney. Um, there is a distinction between the case before you tonight and Borland. And I and I want to clarify a point with attorney Duffy. Yorkland was a 34,000 square foot lot.
Okay. If you read Mr. Street's letter, what's he concerned about? He's concerned about the fact that this lot is smaller than 5,000 square ft. He's putting this property in a different category than Bjorkland. Now, I threw a shot across
the bow and I said maybe it needs a variance, but assuming the board disagrees with me on that, we do go back to the special permit criteria. And I'm, Mr. Duffy, I'm not arguing that an intensification of a nonconformity means
you can't grant a permit. I'm arguing that building a larger structure on a very small lot is an increase in the non-conforming nature. And that's exactly what Bjorkland says. However,
however, from there, you then ask yourselves, okay, we're increasing a nonconformity. We're getting rid of some non-conformities, too. But at the end of the day, is this proposal substantially more detrimental than the existing?
And that goes back to the criteria that we always uh that we always have to talk about. The criteria found in 240 12.1E. It's the size of the structure. We're going from one level not to two. This
applicant can live with two levels. This applicant is choosing not to. This applicant is saying I don't want two. I want three. I want two floors of living space, not one. What's existing and
what's existed apparently since I think Mr. CL said 1940 or something has been one simple level. This applicant wants to increase the size and have two floors of living space on top of the stilts or
on top of of the of the first level base. This is a want. This is not a need. It's a want. It's not a need. And it's a want on a 2900
square foot lot. So, yes, I do hearken back to 1986 when the when the applicant was seeking to go to two levels and the board said, "Uh-uh, not in keeping with the neighborhood." And it was about the scope, the size, the height. Clearly, it was. And I'm also hearkening back to
where we were a couple of years ago here. Same thing. Nothing has really changed. This applicant doesn't want to continue to have a reasonably small, modest dwelling on a 2900 square foot lot. They're going to tell you we need setbacks in lot coverage so we can go
right up to the max. And I'm suggesting that this board could say no to that. And I'm suggesting this board should say no to that. So the only issue we're really talking about here is height then lot
size lot size but also height just overall mass overall size of the structure of let's talk about height. Let's talk about the fact that it is way taller than every building every structure in that neighborhood. Let's talk about the shadowing that's going to
end up uh you know at at sunset time on Mr. Flynn's property. And let's talk about the shadows that are going to be that are going to be uh cast upon the the abuter to the west on the other side of the structure. Let's talk about neighborhood views and and vistas. This
is exactly what the 1986 permit was talking about. This is not a building that belongs there. That's what that's essentially what this board decided in ' 86. And we clearly, it was clearly turned down a couple of years ago because of
size. Again, my the arguments being made, well, we make setbacks and so on and so forth. As if this isn't a larger structure, it's a much larger structure. It's a three-level structure from a onelevel structure. And it needs a
special permit. And because they're they're they they won't stop at two levels and they insist on three. This board has the right to say no. You gave us a de exhibit a few minutes ago here showing what this neighborhood might look if look like if everybody
went up. What happens if a hurricane blows through here next week, one may different situation and and we we get inundated with applications by everybody in the neighborhood that wants to go up to 35 ft because they have to comply with the 15 VA15 zone. I mean, this
neighborhood's in transition. What's the This neighborhood is not in transition. I I suppos I suppose if if I suppose if that would have happened, we'd have a bit of a dilemma. Now, it happened in my lifetime. I don't think it's going to be anybody else's lifetime here, but I I suppose it's possible. Been here for hundreds of years,
and I'm not quite sure. You're the second person tonight. I'm not quite sure a hurricane's going to come and ruin this. Mr. De, I can't speak to what's I can't speak to future days of future applications. I mean, I don't know what we do if a meteorite strikes either. You
know, I I know what's there now, and I know that there's a neighborhood there right now, and I know that there are people from that neighborhood here right now, and I know that they're upset about this, and they don't want it. So, I think there going to be some other people here tonight that the board's going to have to or the board might want to hear from.
Okay. Before Tony starts asking, are you all set or do you want to No, I just I I wanted to make sure we got back to the board questions. Um, if I can just address a few quick things. Um, I I think as attorney O'Keefe pointed out, the question before you is, is the same exact lot size as presently
exists going to be substantially more detrimental? Is is really the threshold question here. Um, attorney Limper has said a number of times that we could add a second floor, but we can't actually add a second floor. Not because of the 1986 decision, but because under our zoning bylaw, the addition of more than
200 square feet of habitable space in a velocity zone is considered a substantial improvement and would trigger the same exact requirement for elevation. We uh that's so it's simply not the case. And I don't think the question is mass or shadowing because that's what's provided under 24013A4 for
lock coverage in excess of 20%. We're not in excess of 20%. So the question is, is what's proposed substantially more detrimental? and when we have an an existing structure with a number of non-conformities that are coming into conformity, the only remaining non-conformity is lot size. So that that
would be my my my quick response to those points, but um I'd love to hear if the board has any additional questions. Tony, you're at that. You know, I've been on the board for over two years and I generally ask a lot of questions um on every application. This one is
truly uh setting me back in my seat. However, it's not going to stop me tonight. Um Madam Chair, through you, may I ask a question of town council? Sure. Um
in the two plus years I've been on this board, I have relied on 240.2 2 review standards and um included in that 12.1E because that's part of 10.2
and I've always believed um that that gives this board a tremendous amount of latitude and capacity to make some decisions because there's a lack of clarity in our bylaws.
I just heard town council tell us that um we really can't look at or consider those things about this proposed project that have been brought into conformity including the height which is which conforms now to our bylaws the setbacks
conform to our bylaws but what I want to know and I want to understand is does 10.2 2 and 12.1E. This is my first question provide us with a lot of latitude to
make choices about adequacy. Are we limited? What how does are we limited? Um that's a loaded question. I know I I am having a hard time answering it because it's so broad and my answer has
to be as broad as your question. um you're limited but only to what's in your jurisdiction and what's in the bylaws. So for example, if the board tries to make um requirements or
findings that are um within the jurisdiction of another board, that is beyond the scope of 12.1E. Um but you have factors here that are clearly laid out. Um I do caution
however that um that 3B seems to apply to the structure versus the the law itself. Um but you
have room here within the language of your bylaw. Just stick to zoning. I wouldn't dare go any place else. I know you wouldn't. I know you wouldn't not here anyway. Um so under 12.1E
um subp paragraph D we have to consider as part of our re review criteria in 12.1 impact on the neighborhood visual character and you know the rest of it in broader
price impact on the neighborhood visual character that gives us a lot of latitude to decide do we think this struck acropose structure is going to adversely affect even when it's in compliance
on many areas now height setback even when it's in compliance with those things we still have the latitude to consider the neighborhood visual character and its impact this house's impact
if I'm incorrect in thinking that way then I need to know that now because I've been doing that for two almost two plus years So, you're not incorrect or you are correct, however you want to look at it. Um, but for here, I just
want I just want to reiterate that when you're making this finding of substantially more detrimental and using these guidelines that you're pointing out, it all has to be tied to the lot size. So when you're so and not any of the
structural or dimensional aspects of the of the project because those are all conforming. What you're talking about are the non-conforming aspects and it's just the lot coverage. So you can do the analysis that you've just proposed but it just tie it to the size of the lot.
But I So we're talking about May I dis May I just please disagree for a minute? Sure. It simply says under 12.1E sub paragraph D impact on the neighborhood visual character. It doesn't tell me anything else. Doesn't tell me I have to
consider anything you just told me about lot size. It just says impact on the neighborhood visual character. Doesn't further define that. Now I'm hearing that there's a some kind of invisible definition that now guides my thinking as one board member about this in this
case this particular project's neighborhood visual how it impacts the neighborhood as far as the visual character. Fair. That's a fair point and my response to that is what I'm telling you is derived from case law. It's case law
um that has um has uh has interpreted chapter 404A section 6 which is the analog to 12.2A section 1. So what the reason why I'm
telling you that anything that you any findings that you make about how it's substantially detrimental to the neighborhood, why that has to be tied to the lot size nonconformity, it's because of all the cases that talk about that interpreting a similar um
section of the statute. So on that point about case law, this board has now been made aware of a particular case law. But on a regular basis, we don't have case law unless an attorney presents
that. So we can only go by the bylaw unless somebody stands before us and say, "Oh, you have to consider this." And when they do that, we even had a chance to read that case law. We can't evaluate that case law. We have nothing
more that we can do than to interpret in this case by the way I see it in 12.1E and 10.2. So I don't know how to take that argument that we have to look at case law if we
can't analyze it ourselves. I'm not saying you have to take a look at case law. I'm just saying I'm, you know, I've been asked to come here to help you go through this. Believe me, I can't. I'm telling you what the case law says. You know, I'm always here to to provide
guidance and assistance. And if there's cases that you want me to analyze, I'm happy to do that. None of you are expected to have independent knowledge of of that. And what you are expected to do is take your experience, all of the years of experience that you have that
relevant to here and apply it in the best way you can. That's all you're expected to do. So I want to just touch and I appreciate Thank you for Thank you for being here tonight. I'm really I'm happy to be here. Under 10.2 it and I know you know this, but let me
just say it a lot. All right. part of which it says, does it reasonably conform to the average dimensions found in the neighborhood? Well, I have to make an evaluation of that, right? All right. Because now I have to go back
to this small lot, a height that's now conforming. It's actually shorter than the the maximum height it can be. And I have to think as one board member that does it conform to the average dimensions. I've got this really tall
house now with a roof deck by the way, two of them that are well above everybody else. Uh, and so the dimensions of this h so I might say I might I don't know I might say that this
house does not conform to the average dimensions of the house and I drove up and down the streets and all of them. So I just want to make sure that there aren't some things in our bylaw which is the only thing I can depend on and of course will you tell us to as well uh
because it's it's the only rules I can go by here and now I'm using as you mentioned I have to use my experience in this case as someone who's developed a lot of property knows how these things come together um and I just want to make sure that we
can do that that we have the freedom to do that even if is just limited to now the non-conforming lot size. That's all. I I just want to make sure I understood that carefully enough. I think you're headed in the right path
and I I can't tell you how to conclude or what what to put in your decision, but just do exactly what you're doing and make the analysis and make the argument. Support whatever conclusions you make with findings and that's the
best I can offer you. Town council's here and I have to really be on my tippity toes to be careful. That's that's right. And that that was it. No more questions from you. No question. Thank you. Oh, okay. Nick, I I feel comfortable. I I town council's
I mean what she I'm fine still. Yeah. Very. Can I address what town council said? Sure. Do you want to address it first while you're Okay. Go ahead. If I understand what she's saying, she seems to be saying that if the
structure conforms that somehow we only look at the law and we're no longer looking at the structure. That clearly isn't the law. And she talks about case law, but show me that case and I'll be very surprised. This is an application
for a special permit. Every special permit requires this board to address 24012.1E. And to your point, sir, adequacy of the site, suitability of the site, impact on neighborhood visual character, including
views and vistas. What town council seems to be saying is directly opposite to what Bjorkland says. Here's Mr. Bjorkland here tonight. I kind of feel uh thrilled to be in his company because I've been reading this case over and over and over and over and
over again over and I finally get to get to see the man. Uh but bear in mind this is Bjorkland exactly but on a smaller scale. The Bjorkland House conformed or the the
proposed house conformed to all of the dimensional regulations including height, but because it was proposed to be larger just like we have here, there was a requirement um or there was
a finding that it was substantially more detrimental. And there was dicta in the case clearly saying enlarging a structure on a um on a small lot, an undersized lot is an intensification of the nonconformity. Now, I fully
appreciate we're losing a whole bunch of nonconformities here, but we we're gaining one. We're getting a larger structure, but regardless regardless, that's only one thing for the board to consider. It's an application for a
special permit. And the and this board is required to look at. I I it sounds to me as if town council say, "Well, don't look at the structure at all. Just look at the lot." Well, the lot is the same lot that's been there since 19
or whenever it was. If you use her logic, why are we even here for a special permit? Because the lot's not going to change. What's changing is what they're proposing to put on the lot
and it's a larger structure and the building commissioner says it needs a special permit and I think we all agree in this room it needs a special permit. Well then let's look at the criteria that is required of a special permit and one of the things we look at is is it in keeping with the neighborhood and in
fact that's exactly why it was denied in 1986 because it wasn't in keeping with the neighborhood visual character and so on and so forth. Of course you look at the structure here. That's why we're here. We're going from one story to three on a
2900 ft lot. Of course, that's what we're looking at. It may comply with height requirements and setbacks and so on and so forth, but it's on a 2900 square foot lot, which means even if it is in conformity with dimensional
regulations, it still requires a special permit because this isn't the kind of everyday lot that everybody that we see every day, this is a very unique situation. It's not a 5,000 square foot lot protected under state law. It's not protected under your our own zoning
bylaw which I think in the RC district goes to 7500 or 7200 square f feet. This is a unicorn. This is a really exceptional situation. Of course, we can look at the size of the structure. Anybody have any more questions for any all three attorneys?
May I make a comment on this point specifically on this? Not yet. We just finished up with the board. Anybody have any questions for any other any of the three attorneys? I'd like to hear from the public and maybe we might Anybody have any further? I guess you can be a bat. We're going to
go public. Okay, Kev. Yep. Absolutely. Attorney. Sorry. I've been called wor tonight. Hi everyone. My name is Mackenzie Flynn from 407 Marav Vista. Um, I was one of the authors and signitories on the joint letter of opposition that was submitted
to you earlier this week. And I was not planning on making a statement, but I've heard some things that I feel the need to respond to based on my research. Um, I I would like to address town council's comment first um that this evaluation all needs to be tied to lot size. Um, I
think we can reconcile town council's perspective with what Mr. Leberts just provided um because Bransford versus the zoning board of appeals of Edgartown stated that creating a distinction in treatment between a non-conforming structure and a non-conforming lot is
one that analytically and practically should not be made. The two concepts are intertwined and separating them would permit a landowner owner to circumvent valid and useful minimum lot area requirements. So in that respect, all of the dimensional requirements are tied to
lot size because it's all relative. So you know where the where the bylaws provide that a structure can be 34 ft, it's also contemplating a you know a lot size that conforms to the requirements or at least complies with you know the grandfathered 5,000 square feet under
Massachusetts law. Um you can see other examples in the bylaws where um the requirements are relative to other requirements. So for example um setbacks change relative to height. Um
bottom line is that I think we actually can reconcile those two perspectives. Um and the analysis can include all of the factors under section 12.1E um in looking at it in its totality
because they're not really separate. The you know the question is is this structure appropriate for the non-conforming lot? Does it exacerbate and intensify the non-conforming nature of this very undersized lot? And that's
what we're here to, you know, to try to establish. Um, I would also like to address attorney Clower's comment earlier that um, our joint letter of opposition suggested that um, any
alteration to a structure would would need to meet 40,000 square foot lot size requirement. U, that is not the case and and that is not what we expressed in our letter. Um, pursuant to section 24011.1A, an alteration to a structure must meet
the minimum requirements set forth in article 11, the dimensional requirements, unless otherwise specifically provided in article 11 or in Massachusetts general law 486. Massachusetts general law 486, as we as
we know, is where lots could be grandfathered in if they are 5,000 square feet or more. So this particular application does not qualify for that exception to the requirements of section 11A1
meaning that this application is required to meet the minimum requirements including lot size. So in that respect they have not eliminated all nonconformities and the height greatly intensifies the nonconformity of the
lot. The size greatly intensifies it. the the shape and the style. Furthermore, under section 240 10.2A3B, even if the change would maintain or lessen an existing nonconformity, it may still be considered substantially more
detrimental when the board considers whether the change creates new dimensional nonconformity, impairs views and vistas, or does not reasonably conform to the average dimensions found in the neighborhood. This section of the bylaw makes clear that even if other dimensional nonconformities are
satisfied, it can still be substantially more detrimental. It can still intensify what nonconformities do exist. And that is the case here. Um you know those those questions whether it would impair views and vistas and whether it would
conform to the average dimensions in the neighborhood, those are are questions of fact and to some extent opinion. So, in making that determination, I would ask the board to heavily weigh how much opposition this application has received. The fact that the neighborhood
has shown up time and time again over the last few years shows that in the in the opinion of the public, in the opinion of Falmouth residents and the neighborhood at large, this this is not going to look right. This is not going to fit and it will be
substantially worse than what's there. the existing non-conforming structure really isn't bothering anyone. It It's in character with the neighborhood. It's it's charming and quaint. What they're proposing to replace it with would be substantially worse than the existing
non-conforming structure. Um and and I think the fact that you know we've all shown up time and time again should weigh very heavily heavily in establishing that. Thank you. Thank you.
Who else wants to come on up? Good evening. I'm Steve Galuli, 10 Sycamore Street. We're across the street from this home. Just had a couple of brief things that I wanted to bring to the board. Um, a little bit frustrated, I must say. I must start off by saying here we are again. three years, sixth
time I think this application's been before this board, including withdrawals and reschedules and whatevers. That's abuse of process in my opinion. I am not an attorney. I'm not a board member. That's pushing the limits of the neighborhood's tolerance. But yet, here we are again. Here we are again to
express exactly as you just heard. This this application is not inconsistency with our neighborhood. We are not in in favor of this application. this board back in 2022, I believe at the end of that meeting, if you recall, uh there was a conversation as the
applicant withdrew and the conversation was this board said, you know, we would to characterize, you can go back for the quotes. You said this board would be interested in an application of the existing structure elevated out of the flood zone, which is by right. If you want to renovate the existing structure and bring it up to that compliance, the
board would like to hear something like that. The board also said if you wanted to do other kinds of modifications a little bit at a time, you may not be required to elevate it out of the flood zone because of the way the rules work, you could you could pursue that path as well. And the point being, this
applicant hasn't approached any of those other options to get to the point of having a habitable structure that they say that they want. What they've continuously come back to this board with is application after application for a multi-story tremendous tower with a fourth deck, fourth floor deck looking
down into the neighboring bedrooms, bathrooms, outdoor showers. That is what is non-conforming. I don't not using the term in a legal sense, but in my sense that is non-conforming with the character of our neighborhood. You drove through our street, you don't see houses like this in that neighborhood. You don't see them on Manant either. You
don't see them even on Surf Drive. You don't see them this clustered together with rooftop decks looking down on top of each other. So that's what's in my mind inconsistent with the neighborhood. And I think it's inconsistent with this process to keep making us come back here. Third time this spring, May, then
June, then it was rescheduled down to August. That's a burden on the community. It's a burden on the neighborhood. We're happy to bear that burden because we're defending our rights as neighbors. But this isn't a simple renovation where someone says, "Hey, I'm just trying to put an outdoor shower on the back of my house and the
neighbor doesn't want it that close to the property line." That's a small issue that we could discuss. This is a towering structure. I'm an EMT. I don't know how you'd ever get a victim off the roof of that house. Fmouth doesn't have a truck that can come down that street and get a victim off the roof of that house. You can't bring a stair chair
down a stair on a spiral staircase on the outside of the house. you're going to have to call in the Barnstable Special Technical Squad to get them off the roof with elevation equipment. That's not consistent with our neighborhood. Again, I asked this board, you've heard all the arguments, you've heard all the
technicalities, you've heard this argument before, you've seen substantially a very similar application, multi-story structure with a rooftop deck, and here we are again. And so, I'm asking the board as a neighbor and as a citizen, I appreciate your time as volunteers. It's fantastic
that you spend the time to help our town maintain its visual character. I'm asking you again to reject this application. Thank you. Thank you. Anybody else want to come up? Let's give the public a chance first.
Anybody else come on up. Uh, good evening. My name is Brian Aspel. My mother, Linda, owns the property at 5 Sycamore Street, which is a direct abutter to 9 Sycamore Street. Uh, my mother could not be here this evening, but I speak with her full
support and blessing on this matter. My family has been coming to Sycamore Street for almost 25 years now. It's a great neighborhood with homes of various sizes on both sides of the street, nearly all of which have been there since the 1920s, 1930s, and 1940s. Times
change, owners come and go, and it's certainly understandable for property owners to have the desire to improve or expand their homes. However, in my humble opinion, the current application that is before you is out of character for the neighborhood
in both size and scope for the existing lot. The proposed new structure will tower over the adjacent dwellings on all three sides with its projected max. It's not just the proposed overall height. There are other homes on the street that
may be 34 ft high. I believe the height to the top of our roof gable is equal to or close to 34 feet high. But our roof is sloped or pitched in a gable style which I believe contributes to reducing the appearance of its overall height. Um
that is the same for nearly all of the other homes on the street. It may not seem fair to dictate the style or design of a neighbor's home. But in this case, there are other factors which I mentioned that I believe need to be taken into consideration. Namely, the size of the lot, the positioning of the
structure on the lot, and quite frankly, its design. In this case, the lot at 9 Sycamore Street is the smallest on the street by far at just under 50% of the next smallest lot. Um, the applicants have mentioned efforts to meet with and discuss their
plans with the neighborhood. It's my understanding that there was a recent meeting with the applicants and several people from the neighborhood. Um, unfortunately, no one from my family was able to attend that meeting, so I can't speak specifically about what was discussed, but it is my general
understanding from discussions with neighbors that there was not much of a productive dialogue with the applicants or a willingness to make any kind of compromises that might be amendable to the neighborhood. And I do know the neighborhood had discussions in advance of that meeting about designs that would
be agreeable to abutters and others so the applicants could obtain the new construction square feet that they reportedly desire while still being able to elevate the dwelling on peers which is something I understand um that they have maintained is paramount to their wishes.
Um this application and process has been ongoing now for just about three years. I can imagine the entire process has become tiresome for the applicants. I can say that it has for the neighborhood. My family does not at all seek to impose or oppose any neighbors
who want to renovate, improve, or even necessarily increase the height of their home by building up. It's just that in this particular instance, we are opposed to the current design and plans. In closing, my family is in agreement with and gladly lent our names in support of
the opposition letter that was prepared and submitted by the Flynn's. There are technical points outlined in that letter on why the application should not be approved, which I'm not qualified to discuss or mention. However, we at Five Sycamore Street, we wholeheartedly agree with the sentiment
of that letter, and we stand in unison with the other many neighbors who oppose this application. I truly hope that the zoning board can see the extent of the opposition from all of the abutters and many others throughout the adjacent neighborhoods who would be adversely
impacted by this application if it were to be approved. For these reasons, I strongly urge the board to vote against the application that is before you this evening. Uh thank you very much for your time and consideration. Thank you. Anybody else want to take a shot at it
up here at the podium? Anybody have any further questions up here? Yes, I got one comment. Coming. Uh, hi, my name is Bill Flynn, owner of
um 407 Mara Vista and uh this has again been three years and and going on. Um just want to keep this brief and that is that uh Mr. Duffy has been talking about
the what ifs. What if? What if this all happened and a big storm would occur. Um, that's a big what if, but at the same time, uh, we're talking about a self-imposed hardship.
All right. Uh, you need to put special back into the, uh, into the, uh, the, uh, for a special permit. make put meaning back into that. Um the uh
we're opposed to this project. Um it is substantially more detrimental to the character of the neighborhood. If that bylaw is in the books and this doesn't fit, I don't know what would.
It is the definition of it. it is the poster child for what we're talking about right now. Um, we firmly oppose this. This is not something that they uh need to do. This is something that they want to do. There are alternatives. We
brought that to her attention that had they taken the board's um suggestion three years ago um and did this in stages. They claim right now that they'd only spend about $100,000. But if they started from the beginning, they would have been able to
spend over $350,000 to this point or more, which would be substantial amount of money for basic upgrades and improvements in what they're asking for. Uh they claim that
they're improving uh parking because there is none. There's about five cars in the driveway. I don't know how many more you would get than that. So, they're claiming that this will improve their parking. Um,
again, if um this bylaw should not be in there because this is the post child of it and uh we strongly object to the um to this application. Thank you.
Thank you. I'm not sure yet. Um does the applicant need a break? Does the applicant need a break? You're all set. Yeah. Okay. Um, do you want Is there anybody else
from Felmouth that would like to speak tonight? Public. Everybody's all set. Is there anybody that's from Felmouth that wants to speak tonight? We have a gentleman that's not from here that would like to speak. We want to give our peeps an
opportunity. I guess no one else. So, come on up. I can't be a peep. you can be appealed and again if I can um for the public as well I mean I've been studying zoning for 43 years and I've been studying the non-conforming section 1976 it was
written I told you I sat down with the person that wrote it for Barbara Gay's office and I deal in a lot of different towns with doing consulting work I'm not an attorney I'm not a lawyer. I don't have to be. I have a lot of lawyers ask me questions about this stuff.
A lot of towns have difficulties with their local zoning bylaws and how they write these sections. And I can see confusion on people's faces. They ask town council. They make it so it's so confusing when it goes to town meeting. People don't understand what they're voting for or not voting for.
There's been a lot of talk tonight about lots that are less than 5,000 square feet from people in the public as well as the attorneys. The 5,000 square foot section of 4A6, okay, pertains to lots that have never had construction on them before. It's a
vacant lot that somebody owns that has 5,000 square feet on a street, excuse me, 50 feet on a street and 5,000 square feet of area. If you've never built on that and you don't own any land around it and haven't owned any land around it
since it became a non-conforming lot, that is available for a spot for a house. If you own two of those lots together, if they're in the same name, they automatically merge together. I know that because I had the case on that, one of the leading cases in Massachusetts, Preston versus Hull. But
right now, anybody who's got a dwelling on a lot, whether it has a hundred square feet or whether it's got 5,000 square feet, whether it has any frontage or not, if there's a dwelling on it, it is protected under 4A section 6. And
what's protected doesn't have to be the lot. The lot's there already. It's the structure that's on it. And those are controlled by 4A section 6. And it's the second except clause which talks about single and two family residential structures which talks about the right
to rebuild them for everybody that's here that's on an undersized lot. You have a right to rebuild those houses. Okay. And I've heard this house is much bigger. Okay. Well, that's up to you guys to decide. If you base it on square footage and the square footage in the
record is the same, they're entitled to the permit. Okay. I've heard one of the attorneys say, "This is a much larger house. It's a reconfigured house." Okay, it's going from a house that doesn't conform to the setbacks and they're pulling it back and they're going up
higher. I'm sure they don't want to meet FEMA compliance. Nobody does. Nobody wants to meet FIA compliant, but you have to. Okay, that's what FEMA wants. That's what the government wants. That's what they need to do. Okay,
this to me seems like I'm going to take the neighborhood out of it for a second based on the decisions that I've read and I've read a lot of the decisions that this board has made. Okay, in regards to height, okay, I think it was Indiana A. Okay, that one was a non-conforming lot under sized. They
went to 34 foot 10 in high and in your decision, you made a finding that said that was per the bylaw. Okay. If you don't meet the setbacks, if you're going to be too close to the property line and they want to go up higher like the older one that these people wanted to do, you
can say no because that's within the setback area. Okay? That's why it didn't comply. That's why that got denied because the height going up was within the setback area. This one, the height going up is not within the setback area. It actually meets all the setbacks. So,
it's just a reconfiguration of the house. So, to me, the only thing you have to decide is is this a larger house or is it not a larger house? I'll I'll stop it at that unless somebody's got a question, but there's a lot of confusion around it. And I I'm I'm surprised that
I I understand attorneys are here to represent their clients and and I get that. Okay. They have to do that. That's what they get paid for. Okay. But nobody should add confusion to exactly Press the board, please, and speak into the microphone. But but I just saying nobody should add confusion to what's going on. Nobody
should show should throw a shot over the bow, okay, to make to confuse you to start talking about variances and things like that. That's not even in play here, okay? This is a really simple application. Be at all that maybe nobody likes the house. Okay, but logistically,
from a zoning standpoint, it's reasonably a simple application. And I I think that you should stay in favor of it. They are reducing a lot of the nonconformities and if the house is determined to be the same size or smaller than what was there, I think they should get the approval. Thank you
very much for your time. Thanks for getting into the battle. Are we Do you want to take a two-minute break before we hear from the the attorneys one more time? We're all set. Can I make another public comment? This is just getting repetitive, Madam Chairman. As long as it's not repetitive. It won't be repetitive. I would like to
address the comment just made about uh Massachusetts 486. I have it in front of me. This this I I Madam Chairman, I'm going to object. I don't I don't I don't get lectured about what the law is. We have a Well, we just did. I wouldn't mind the other side of it just to be honest with you.
Yeah, Mr. Mr. Bland just said that past that and they had too much time, but still I think that she should be able to go ahead rebut. Just make it quick, please. Very quickly, Mr. Bjorkland said that this uh that 486 does not apply because there's already a building on the lot. I
have it in front of me. It very clearly applies to any change or substantial extension of of a use to a building or special permit issued at you know to an extension or structural change any alteration or structure. It it it very
clearly applies when there is an existing structure that's being altered. Does she read the whole section? Madam Chairman, the purpose of public comment is from there. Sir, thank you. You all set? Yes. Thank you. Attorney Lewitz, would you like to wrap it up like two minutes,
please? And then we'll give attorney um Sure. Um I a couple minutes. I just take a little bit of issue with what Mr. Bjorkland is saying. He he's clearly implying that if the structure conforms to height, then it's a moot
point. It's you got to approve it. He he and and I noticed he prefaces his comments to you by saying, "Well, I I want to leave the neighborhood out of it." Yeah. and then he talks to you about a house as if the neighborhood isn't a consideration here. This is a special
permit application and I I think even my brother Mr. Clower would would concede that and we have to talk about impact on neighborhood visual character including views and vistas regardless of whether it's under 35 ft
in height and is meeting the setbacks. It's a 2900 square foot lot. It's looked at differently than a conforming lot. So, a conforming structure on a non-conforming lot isn't a structure there by right. That is Mr. Borkland's
case. That's what that case says. You have to consider the impact. You have to consider the impact of a conforming structure on a non-conforming lot. You have to consider the impact on the neighborhood visual character. Of course you do.
You have a question for any particular I have a just quick question and I don't care who answers the question because we have to consider the lot size or we are considering lot size here.
Do we in fact are we in fact creating um an opportunity for a variance and a hardship if this is denied? So, I don't know what attorney is going to answer this question, but no, the answer is no. I'm getting a no from See, and even the non- lawyer will say no.
And we shouldn't even be hiring that anyway, Madam Chair. I I hire attorneys to get my way, and I don't know otherwise. All right. Thank you. You're all set, though. Okay. Everybody else up here is all set. Go ahead. Thank you. Um, there's been a lot of discussion tonight
and a lot of a lot of conjecture, a lot of direction from abutters as to what we can or should do. Um, but what's before you tonight is the application that that we presented. And the application we presented takes a a structure that is significantly non-conforming to front
yard setback to sideyard setback to the west. One foot in each one foot or less in each of those situations and makes them entirely conforming. It takes a structure that is non-conforming as to lock coverage by structure and to lock coverage by structures, paving and parking and makes it entirely
conforming. This structure is entirely now conforming as to the dimensional regulations in our bylaw. The structure the only non-conformity remaining is the lot size that's not changing. We can't change that. But the lot size remains the same. But
now with a new entirely conforming structure I don't see how that can be substantially more detrimental than a lot with a wildly non-conforming structure. I believe for all the reasons that we've espoused tonight
that this board can and should grant the special permit and I'd be happy to address any questions if there are any remaining otherwise I think we've emptied the bag here we have any further questions
everybody's all set up here I have no questions I'll make the motion then. Um Oh, I'll make the motion. I thought you asked if I motion we close. Second. We have a motion. Question on that, James. We are lost without Scott. Any further
discussion before we close? You all set? All set. I'm all set. I think I've probably said enough time. Agreed. All right. All those ready to vote. Cold to close. to close.
To close. I I opposed. You're in it, Nick. So, the hearing is closed. Well, we're going to have some discussion. Yeah. Who's going to start?
I think you can if you'd like. Unless you want to start. I've been here for I think about three years tonight and this is this is by far Yeah, it is. I think tonight's my third. Yeah, exactly. I thought you meant three years. Tonight was three years.
Three years tonight. Whatever. Tonight was three years in and of itself. That was just listening to you. Hey, I got to do what I got to do. I know. Dooby doobydoo. Frank Sinatra said that. But um
there's a lot to cover here, but it stays right within the parameters of my thinking right from the beginning. on the first night I said that you could work on this house and and improve what
exists there. You told me that was not correct. Um we just did one in North Felmouth. Um they were given a price of a million1 um for just over 300 grand. Now they got a house that's worth a million5 and they
can send their kids to school. Uh I know it's not the same thing, but things like that can be done. Um, and we've been through all this law. Everybody gives us uh advice. Well,
there's something pretty basic in law called caveat mtor. Um, and that applies to real estate as well. Um, I don't see how anybody can argue that this isn't substantially more detrimental to the neighborhood. And
speaking of neighborhood, um I always tried to bring neighborhood into it like when we did our bulk calculations and and I think um to be honest um many members in this board in the past have given more difference to neighborhoods
than even I would have. Uh but you can't deny that this neighborhood is pretty much in unison. Um, and it certainly appears from the outset that um, you know, whatever. I might get in trouble for saying this, but
they wanted this tower with their ocean view and uh, they weren't going to be denied. Um, I uh, and the numbers numbers have been played around with this thing and stretched and whatever. Um,
I can't vote for this. Why is it Frank? I agree with uh Mr. Fineran. This is probably the most difficult case that I've sat on and I've been here only a couple weeks short of three years. So, um,
do I look older? Um I I I this um I first of all I believe that the lot is a buildable lot. All of the argument all of the time we spent arguing about whether or not this is an
buildable lot. I disagree with it is a buildable lot. It was built upon at one point and the 5,000 square foot uh requirement in chapter 48 section six applies to lots that have never been built upon. This has been built upon and
according to the property record card that I looked at um in the assessor's office it was built in 1940. So we've had almost 85 years of a house on this lot. We've we've we've agreed that we are hearing a special permit. Um, the question about whether or not this
property even requires a special permit is not before us. We're not going to decide it. But the existing structure is a non-conforming structure. And under section 240.2A, when we're dealing with a non-conforming structure, we look at the proposed structure and we have to make a
determination if it it shall not be substantially more detrimental to the neighborhood than the existing non-conforming structure. Now, in this particular situation, a couple of things are happening. Number one, they're taking a non-conforming structure with
some serious nonconformities as far as setbacks go, and they're going to propose or build a structure that conforms to the zoning to the requirements of the zoning bylaw with respect to setback requirements. They're also conforming to the zoning bylaw with
respect to height. 35 I think it's 34 feet. 34 feet. The bylaw allows for 35. The reason they're going up is they have to comply with the law. The the law requires uh they're in a VE15 zone, which means that they have to go to 15
ft plus 2 ft so that the first floor has to be 17 ft above the flood zone. Um they're required to do that. This is not something they want to do. They're required to do it. And I don't see why we uh can find I don't see how we can find that a property that conforms to a
building code and a provision of the zoning bylaw is substantially more detrimental to the neighborhood. Um I'm personally impressed by the fact that they are trying to eliminate the nonconformities here. Um it terms this property conforms to the as far as the
footprint to the property. Um, they're taking a an existing structure with a 10 1,025 ft square footprint, reducing it to 586 ft. They're taking a property that has 720 uh square feet of habitable space.
They're reducing it to 570 ft. Um, they're making every effort to conform to the zoning and to actually minimalize uh this this building. This is not a situation where there's a a McMansion being built. I know it's it's taller. Um
it may appear larger, but it's really not. It's not a McMansion type situation. Um the property is also located on a sewer where four bedrooms are allowed. That has to I think be considered. Um we we did not have in our referrals to this project. We didn't
really have any um opposition from town. Um the conservation commission has determined that they have issued an order of condition for the property. Uh and they they amended a previous order of condition on the property to allow this property to be built. Um there was
a question or comment raised about what happens if somebody needs emergency services on the roof. Well, the fire department weighed in and said they have no comment. Um so I I'm a in favor of this project. I think it's a reasonable
effort to comply with the zoning bylaw. Um and I I would vote for it. I'll speak next before you, Jim, if that's okay. I also am glad we settled the special permit pack, but that's where I lie in where my problem is is
it's I feel detrimental to the neighborhood in in my mind. Um I don't like the looking down into the other people's outside showers. I definitely don't like that at all. And um and I I
know I'm not probably supposed to say it, but there'll be a rental aspect to it. And um that bothers me also. And that's all I have. Jim, thank you. U so I agree with the analysis of Mr. Duffy. This is a
buildable or otherwise protected lot. Uh albeit it's a very small one. Um during the previous applications I was against and I would have voted against the application at that time because there were continued to exist nonconformities
as to setbacks uh as well as other non-conformities and I just didn't think that there was enough concession. This application though for the same reasons that Mr. Duffy's just gone through essentially has eliminated. I cannot applying as a matter of law and I'm very much in empathy with the neighbors but
we're here to apply the zoning statute. I think that uh deny this would be arbitrary and capriccious and we could not justify it based on facts given that uh the footprint of the actual house is being eliminated. I asked a specific question in reading the boring case that
the SJC found issue because the footprint was being increased. This is being decreased. Town council weighed in on this issue that it is in fact distinguishable. Um height going up. We've this board has continuously held that FEMA flood compliance. We've almost
never penalized an applicant for a special permit uh due to height which is still within right uh at 34 ft. We've never penalized a an applicant for coming into compliance with FEMA flood codes. Uh it's a compelling reason to ensure coastal resiliency. It causes
insurance rates overall to come down uh when properties are elevated above uh identified flood planes. Um neighborhoods are changing because of this. If you look down uh Surf Drive, the houses along Surf Drive and in the flood zones there uh I used to ride my
bike to Woods Hole every day in 1980. The houses that are there now versus uh after post Hurricane Bob are certainly not what was there 20, 30, 40 years ago. So that although the height is going up there's a compelling reason u the I
this is I think what the second or third evolution of this application but this again by eliminating all the nonconformities I can't find that it is more detrimental. We've never held uh in terms of views and vistas uh there is no
that's a private right if someone has a recorded view easement we've never held that uh as a reason and again I I would consider the FEMA flood compliance uh to be a compelling reason I am troubled by the rooftop deck I think that could or should be eliminated I don't think it's
necessary um I wouldn't necessarily want someone towering above me but again we're not an architectural review board um probably my biggest problem. I would begrudgingly have to vote to
approve this given that the only nonconformity left is the lot size which I believe is protected. Thank you. Go ahead. I mean although n the vote. Yeah, you can. Yeah, you should. Although I may
disagree with the style of this property, but what the applicant has done is to bring so much of this into conformity that I think it has a tremendous beneficial effect to the neighborhood. Even if I dislike that it's tall, we can't penalize them for
what FEMA requires. They've got to go up. They have no choice. I would like to see if this board were to approve this, I would like to see a condition that the roof both roof decks be eliminated because I think because of the height, it's going to be looking into
neighboring properties and and I think because of the size of the lot that is detrimental. Uh but I think if you eliminate the rooftop decks, both of them, uh it is less detrimental. What my point is this. What they've done to
bring this property into conformity other than lot size which you can nothing about is a I think tremendous benefit to the community and I would certainly hope that this board would vote to approve it if in fact they eliminated these roof decks.
Nick um we all said what you want to say? Yeah. Yeah. I I'm pretty I'm good to go last. Yeah, I'm good. So, I think we've all spoke. So, um I think it's an appropriate motion to deny the application for the special permit.
Madam Chair, um you made a comment that I'd like to address if if you'd be willing to reopen. We're not going to reopen. But in fair in fairness, a comment came up that hadn't hadn't come up at all um during tonight's conversation and and I'd love to be able to address
it because I think it speaks to your concern. Anybody? We'd have to reopen. We'd have to reopen. No, I'm not. That ain't happening. We've been here six times. Yeah. So, we have a motion to to deny. I'll second that.
Uh before that's voted. I Madam Chairman, we Well, I'll withdraw my second you speak because you get the chance. Nobody else does. Yeah. Especially you are. Thank you. Uh the only suggestion I might have is if the applicant wants to withdraw, we've traditionally given the
option to do so before the we've been been already. Um so ma madam chair, you made a comment about the roof tech and that being the cabinet. He asked you if you'd like to withdraw without prejudice.
May I have 10 seconds to speak with my class? Certainly. Thank you. While he's conferring, the only thing I if uh if this does go to a vote uh to make sure that we put sufficient findings one way or the other depending on Yeah, we're going to have to do specific
findings. Are we going to approve or not? talking about denying. Um, Madam Chair, having heard your comment and what you stated as your concern, we would like to request a motion to withdraw without prejudice so that we
can address that comment. Okay. So, procedurally, I'll make a motion to reopen to allow discussion and that particular request be made. Madam Chairman, because I'm just concerned that someone's going to make an appeal about improper No,
we just consider Well, we're going to withdraw it back up again. Applicant has requested to withdraw. Let's go on for weeks and hours. Maybe we can resolve this in 10 minutes. Maybe we can't. Not without pictures in front of me.
like you know I mean we've been I would just too much too many numbers thrown around on I would rather see a new plan. Okay, perfectly fine. And we're happy to do so. Right. So we're he's he's accepting withdrawal without prejudice. Right. Or we
I'll make a motion to accept attorney Clower's withdrawal without prejudice. From a procedural standpoint, I think you need to reopen it for me to for request. Oh, that's correct. Um, I'll make a motion to reopen to for the limited purpose of entertaining a motion to withdraw. Second
there be public comment on the motion to withdraw? No. Excuse me. Public comment be allowed on the motion or reopening the hearing. No. All those in favor of the reopening of the closing I
opposed. None. I motioned that we accept Attorney Clower's Let's get the request now and then we Oh, yeah. Yeah. I'd like to formally request a uh that the board make a motion to withdraw without prejudice. I motion we accept.
Could I be heard of the motion? No. No second. Second. We have a motion to second to accept the withdrawal. Are we okay legally? I believe so. We okay? Yes. Okay. Well said. We've accepted the motion to withdraw. In favor,
I opposed. None. Okay. Thank you. I know this has been a long night and a lot of consideration and we appreciate your time and and thoughtfulness on this matter. Let's take a two-minute break. Minute
break, please. weeks. Getting a little hot. varants and all that stuff. I don't think it was confusing. It's got I think we we're inconsistent. Let's say you have
Oh, it got nice and quiet in here. All right, we're moving on to 31 Priscilla Street, the Garlands. Okay, this one Frank's going to open it up and you know we have here
this is application 045 of the year 2025. Robert Garland is applied to the zoning board of appeals for a special permit pursuant to section 12 excuse me 240 10.2A to a of the Falman zoning bylaw to construct an addition to the
first floor and an addition and a partial second floor addition increasing lot coverage by structure. Um properties located at 31 Priscilla Street in East Belma
for some of the details. Um the properties in an RC zoning district. I didn't note any overlay districts. The um flood zone is X. The existing property is 164 square feet. It's a single family dwelling. The
proposal is for a single family dwelling at 1767 uh square feet. The lot size is 7,200 square ft. It is in a zoning district which currently requires a minimum of 40,000 square feet. There are no previous zoning board of appeals
decisions on file. The street frontage is 90 feet in a zoning district which currently requires 100 square feet. Um, Priscilla Street is a public right of way at this particular location. We have some nonconformities. Uh, the existing
nonconformity lot coverage by structure is 22.3%. It will increase to 24.5%. The limit is 20%. Uh, we're allowed to go to 25% by special permit. Um the lot coverage by structure parking and paving
is 31.8%. It'll be increased to 34.1%. The limit is 40%. So it's within the limit of the zoning bylaw. The uh setbacks um the current east setback is 31.4 ft.
The west setback is 18.4 ft. The street uh which is the north set back is 21.3 feet which is non-conforming uh 25 is required and the south is 18 excuse me 11.8 ft. So that conforms
uh the height of the building is currently 15 ft. It will be increased to 23 ft. As far as referrals from town departments, the engineering department has advised us that storm water runoff should be contained on the property and they the contractor shall only uh apply
the erosion and sediment control standards during construction. The board of health has advised us that the property's on sewer. Conservation Commission has no comment. The water department says they are satisfied and the building department has no comment. There are no letters of opposition and
no letters of support on the file. We also have a note that the homeowner has enlarged door casings for an office and storage area uh so that they cannot be used as a bedroom. Good. Okay. I'm like welcome. Hi, I am Heather Marshall. I'm the
architect representing Bob Garland at 31 Priscilla. Um you had mentioned all the things that I was going to mention on the non-conformities. It is a non-conform pre-existing non-conformant uh lot and we are proposing to build a singlestory addition to the side and
then a second second story addition on a portion of the existing house. Um we are proposed to increase the lot coverage by structure to 24.5%. Um we understand that we can go up to 25% and we have neighbors at 32% that
are currently at 25.02% 02% and we are well within uh the 35 foot uh zoning height. So we are seeking for a special permit um to move forward. May I just ask a question? I know I'm
out of order, but you talk about increasing lot coverage by structured, but I don't see you've applied for that permit. Um, under section 240 11.3A4, we're allowed to give you up to 25%. And in fact, you you are already
non-conforming and you're going to increase the nonconformity. So, I think, Madam Chair, that we have to have an amendment to this application, see to uh ask them if they would amend their application, and I would hope they could do it orally for a special permit under
241.3A 4. Do you understand that? Do you want to read my book or anything? Yeah. No, I would love to because I'm from Citrus. So, for you, it's it's a no it's a no-brainer. You you just forgot to apply for the
right special permit. We're just telling you to apply for the right Okay. Just give it a minute and then we'll we'll can be amended tonight. Yeah. Yes. So, we just need to apply for the right
permit. Yes, we'll amend it. Okay. Okay. Then I would move that they the application be amended to include an application under for special permit under section 240 11.3A4 to uh approve lock coverage by structure of
24.5. Uh, excuse. Yeah. Yeah. 25.5. 24.5. Yep. Second. We have a motion and a second. Any discussion about it? All those in favor? I thank you. Thank you very much.
Thanks. Your drawings were great, by the way. I even said that when I was in the office to the to the We tried to keep it. No, I I thought they were great. Just my opinion. All right. Mark, you want to start off on the project?
Yeah, sure. Uh, I echo her comment. I uh We're not done. We're not done. We just started. We just started. We're just We haven't just started here. The compliments weren't over.
But, uh, honestly, I I I do echo that. I think it's it's it it's nice. It's um had a few here. I haven't seen one like this. This is other than to say that uh I used up until last year I owned a house on one of your lot comparison
sheets right over the fence. Um I I think it's very nice and well within what uh you're entitled to and uh if the uh completed projects as nice as the drawings, it'll be an improvement in the
neighborhood for sure. Thank you. Frank, do you have anything? No, I visited the property and I think the um application and the proposal is appropriate. Yeah, I did the same. I drove around and there's there's I think a that's the tire tracks in the backyard
hers. There's um a cape I think across the street. I mean, there's several it changes up. Ranch Cape, Ranch A. Yeah, it's a ranch neighborhood that's been mod they're slowly being modified over. It does fit in well. Yeah, that's all I have. Uh first, thank you for your patience
tonight. you got behind a contentious issue. So, thank you. Um, just a couple quick just to confirm, uh, the existing shed is going to be removed on the lot. Yeah, that's how we were able to keep it under 25%. Um, plans are very nice. This will definitely be a a very nice improvement. Uh, one thing the board is concerned
with, uh, sometimes is illegal bedroom creep. Y, um, this is Seward. Oh, no, I understand. Um, I know that the I see that the finished office office space is going to be finished in the basement. Do you have any objections if we condition uh the storage area, workshop, and laundry and utilities
remain unfinished for your plans? They remain unfinished. Yes. And we also amended the floor floor plan last last week to show uh those doors being removed. Yeah. Cased openings to make sure they're not considered a bedroom. Yep. Um what's the ridge height?
Uh with the proposed it's 226 or 224. Well below. Thank you. Those the only questions I have. Thank you very much. I I was out there. It I think it fits in very nicely. It's a tremendous improvement. My only question is uh and I I'm just not seeing the plan. What is
the uh distance from the proposed addition to the front lot line? Uh it's a little bit further back. So yeah, right now the existing front setback is 215 and the you just don't have a measurement for the Yeah, hold on.
should be like two pawn 154 to the side slightly more than 21 213 three that's to the but it's actually a little more oh so yeah it's equal equal so I don't have it scaled hold on it's not it's going to it should be about like it's I went it goes in 5T
that's what I'm looking for five feet okay thank you how that those were all set Nick you have any yeah almost looks great I just confirm what your question was Tony you did the the I was there was no dimension from the proposed addition
to the front section to the front lot line and I was just asking what that is. It's now been determined to be 26 feet 26 ft. I think that's 3 in or 5 in. Uh 5 in. Okay.
That's all I was asking what that dimension was. Anybody else have any further questions for the public? All set. Anybody from the public want to comment on this? Mark, you want to help me out? I motion to close, Madam Chair.
I'll second. We have a motion to close. And do you have anything further? Nope. You're all set. Everybody else up here is all set to close. All those in favor? I I opposed. None. Excellent. Now we So we have a structure in an RC. Make a motion.
Motion to approve with conditions. Second. Now we have a structure in an RC zoning district. uh no overlay districts propo existing structure single family dwelling 16004 ft the proposal is to increase it to767
square ft flood zone is x um the there is a existing nonconformity with respect to the lot coverage by structure it is currently 22.3% will be increased to 22.4% 4%. Uh the applicant has amended their
application to apply for a special permit under section 241.3A4 to increase it to 24.5% which is within the 25% that we are allowed to give. Lot coverage by structure average in the neighborhood is
18.22% according to a worksheet submitted with the application. Lot coverage by structure parking and paving conforms design. Um with respect to the setback um there will be one change in the setback uh
the u easterly set sideline is going to be reduced from 31.4 to 15.4. Uh the remaining setbacks are the same. Um the we have already approval from the engineering. There's a statement made
during the hearing that the shed will be removed. Uh that will be a condition of the special permit granted. Um we have under section 240 10.2A of the zoning bylaw pre-existing non-conforming structures may be extended, altered or changed by special
permit of the zoning board of appeals. They shall not be substantially more detrimental to the neighborhood than the existing structures. And we so determine that to be the case. There's a slight increase in the nonconformity, but it will not be more detrimental. does not impair views or vistas and it reasonably
conforms to neighborhood averages. Under section 240 12.1E, the criteria for a special permit, we make a determination that the site is adequate for the proposed use. The site is suitable for the proposed use. There's no impact on traffic flow and safety. There's no
reported impacts on neighborhood visual character, views, or vistas. There's adequate sewage. Uh it's on the sewer. There's adequate utilities and there's no impact on affordable housing. And with respect to the special permit under section 240 11.3A4
uh lot coverage by structure may be up to a maximum of 25% this would be 24.5% that the site size and height of the proposed structure are relative to the neighbor are conform to relative conform to the relative neighbor conform to the
neighborhood averages. Uh there's no proposed there's no testimony that it will adversely affect by shadows on adjacent properties. um views and vistas from public ways are not affected and there's no impact on coastal on nitrogen and coastal bay impayments because of
properties on the sewer. The existing nonconformity as to lot coverage is eliminated by virtue of the special permit bringing the house more in compliance with the zoning bylaw. Did you get five letters in favor? Oh, no opposition offered at the hearing.
I didn't see any in the file. I saw I thought I saw five like a like a There are five. Yeah. Okay. Five letters. Five letters in support. Yeah. Five letters support. Yeah. Okay. Conditions.
Uh no. The office main office. I've just looked as the uh areas on the plan indicating in the basement are to remain unfinished. No other buildings on the lot. No additional lot coverage. No additional law coverage. Standard hours of work.
Per plans. Um I don't have my sheet with all my stuff. Work hours. Do you know the work hours for the construction? 8 8 to 7 Monday through Saturday. Uh 7 to 7 p Sunday through Saturday.
7. Yeah. 8 to I mean Monday through Friday. 8 to 4 on Saturdays. Right. We'll write it down for you. Oh, they're also there. And the the thing you may have a problem with in that neighborhood is when the construction all has to stay on site. Yeah. You might need to contact the police to
help or you know, whatever needs to happen in that case. Any other conditions anybody can think of? Any other conditions? Norine? Uh, no further structures, right? Yeah, we did that one. Um, I think
that's it, right? We're all set. We have a motion and a second and we have everything. We're all set. Everybody ready to vote? All those in favor? Opposed? We're all done. Now I can go. Thank you. You threw me off at the amended part.
All right. Thank you very much. Have a good evening. All right. Next up at that we have a variance for zero and 22 Dapon Road in East Fountain.
Okay. Um, this is application 047 of the year 2025. Joshua L. and Melissa O'Brien um have applied to the zoning board of appeals for a variance pursuant to section 240 11.4A1i
and 240 12.3A of the code of Felmouth, which is the zoning bylaw, to allow a shed to be located in the front yard less than 50 ft from the property line. Again, the property is at 22 Deer Pond Road. That's in East Fmouth in the
Pinerest Beach neighborhood. The zoning district is AGA. Um there's quite a few overlay districts reported here in the file. Um it's in the wetlands resource area, coastal pond overlay district, water resource protection district, wildlife corridor,
and a national heritage endangered species protected district. Um the there's an existing shed on the property. It already exists. Um, it's 212 square feet. Now, there's a
little oddity here. There are two lots. Uh, the first lot is 1,200, excuse me, 12,231 ft². The second lot is 4,922 square feet. They have been combi combined by an approved plan at the
planning board. So, the new lot is 17,153 square ft. that comes to uh and it's in a zoning district where the current minimum is 45,000. The street frontage is 190 ft and zoning
district which requires 100 ft. So it conforms here. Pond road is a private ride ofway at this particular location. The lot coverage by structure is 12% which is within the 20% limit of the zoning bylaw. lot coverage by structure
parking and paving is 30.7% which is within the 40% allowed by the zoning bylaw. The nonconformity here uh is the shed which is 1.7 ft from the sideline
property line at Deer Pond Road. Um and uh there's also back from the pond that's on Deer Pond from Deer Pond. There's nothing in the file indicating the height of the structure yet, but it clearly appears to be less
than 35 ft tall. Engineering, no comment. Board of Health, no comment. Conservation told us they have approved the pro the shed as is. There's advised us that there's an outstanding enforcement order dated February 15, 2025, and that the applicant must
continue to comply with the enforcement order. That's not a zoning order. It's a conservation order. water department had no comment. The building department um noted that the lot had merged and that all plans have to be recorded in the registry of deeds to complete the lot
merger. Um I noted no letters in support or no letters in opposition in the file. Um and that's my two notes. Okay, that's it. All right.
Last one standing. Thank you for your patience tonight. Oh, thank you. What are you doing? Does this automatically shut off, Ashley? Um I think it's just it was resting. Yeah,
uh password or is it password? Yeah, it's right at the top. Oh, this should fancy dress. Is Elon Musk to help? All right.
I'll just pull up a couple things here so you can look at that when the time comes. Thought that was interesting. Minimize that. Uh so that's a shedding question. So, after all the interesting things got to sit through, uh this is
this is why we are here tonight. Appreciate you uh having us here to hear our uh our story. A little bit about us. Uh I'm Josh O'Brien. I'm here with my wife Melissa. We're the property owners of uh 22 Deer Pond and Zero, which is
now 22 Deer Pond Road. Um our neighbors were here and then it got too late, so they're not here, but I'd like to acknowledge that they uh came to support us tonight as well. Thank you all for hearing us. Uh this is quite a thing. We've never sat through a zoning board meeting like this before or ever. So
quite interesting. Uh a little bit about us. Moved to Falmouth 2016. I was stationed at Otis uh Cape Cod Air Station Cape Cod or Coastg Guard Air Station Cape Cod to be exact. So that's when we got to town. We bought this property in 2018. We've owned it since
then. Um, we were then able to buy Zero Deer Pond Road, which is the other the lot right next to it. Um, later on um to combine the two lots eventually. Uh, my wife and I have volunteered around
town quite extensively. We're happy to be here in Falmouth. It's a great town. So, so thank you. After 20 years of traveling around with the military, this is this is where we want to be eventually. Uh so then tell you a little bit about the property
uh just to make it interesting. So this is the 1968 flyover. Uh the the area was developed in 1964. The property was uh built in 1967. This
is the house here. This is zero deer pond which used to be the beach. And as you can see, it was all built on on fill and aggregate and uh was essentially a sand pit back in the day. Um that being said, it has its challenges. That's why I bring that up. Uh it's a really
relatively small house with dated functionality. There's no storage space. There's no attic. There's no garage. Um and the basement is a small has a couple bedrooms in it. So we really don't have any storage in the house. We do have the
small shed on the property. Uh but that's this is big enough to hold a couple bikes and some golf bags, which is why we we built the shed that we're discussing. It is a utility shed. Uh it stores things that we need for the season. And uh right now, unfortunately,
my wife lost both of her parents within 5 months of each other. So it has a whole bunch of uh family heirlooms in it. But usually it's storing the kayaks and other beach things that we have during the win during the winter. And in the summer it stores uh win our summer
items. Uh it's built from reclaimed lumber right after uh the COVID lockdown. Uh there was reclaimed lumber all over town that was given to us. Uh so scrapboard windows came from a remodel and uh the shiplap and
everything else came from basically the restore. Uh, I guess I should restate that I'm not a lawyer, so I don't know all the the zoning laws. I'm also not a builder, carpenter, or anything to do with the trades. Uh, so I don't have expertise in this. But we did have an idea to build a shed. Watched a lot of
YouTube. Learned how to build a shed, designed it, and built it ourselves, which is why it's a little bit wonky. According to Mr. Street, it's not square, so I guess I'm embarrassed about that, but not really considering it's not my profession. Uh so like was
mentioned we did combine the two lots uh both of which is still very small you know that the I think you mentioned the total combined lot size was less than 17,000 ft. Um we cited the shed where it is
um here uh because it was quite honestly the best place to put it was out of the way and maximize some space here. And yes, I know it on the uh on the uh site plan it says it's 1.7 feet from the line
property line which is very true legally. Uh but this is the side of the road that's usable and from here to here I measured it out today just to be sure is 18 ft. Not that that matters. It's still well within the 50 ft that I believe you have to take into consideration, but I just I at least wanted to point that out and hopefully
you had a chance to walk the property before this. Uh we have been working with the town departments for a while now. We met with Mr. Street who gave me the the way forward which was step one to get with conservation to see if they
would uh uh help us with being able to keep it as was previously mentioned. They said yes with mitigation. Um and then the next step was to come before you to see if we could get your approval as well. And then Mr. Street said we
could get the permit after all those things hopefully. Uh the shed has been there since 2021. So it's been there for almost uh four years now. Uh so hopefully you get a general idea of the property. I do think there's some questions that I'm supposed to be able
to answer for you. Uh so I'll pull those up here. The three big questions. Hopefully I'm going down the right road here and not wasting your time. But uh what what are the special conditions relating to the soil conditions, shape, topography, the lander structures uh
which the variance has requested and uh especially affect the land of structures that do not affect generally the zoning district in which it is located. Well, uh I would argue that the entire property is special. Uh it's like owning a honey badger as a pet. It's unruly, undisiplined, it's inappropriate, and at
times it wants to kill us. But that being said, we love the property and it uh we've learned to live with its quirks, even the the painful ones. I think the modern bylaws were written well before this property was developed. The lot's too small. The house is too
big on it. It's too close to the pond. It's too close to the road. Uh we're essentially being squeezed from all sides with nowhere to go. Um other structural hardships. Again, there's no backyard. If you can if you see the the the plot plan there, the
contour lines are uh pretty steep. There's a I believe three flat surfaces on the whole place. One is where the uh the house is, one is right beside the house, and the other is uh down where the shed is. Uh so it's a challenge.
Um again, there's no attic or garage, and the inside of the house is connected but by a spiral staircase. Not that that matters in this case, but uh it's my wife calls it the spiral staircase of deaths because we have to go outside to move things around the
house which we have no storage in. Um what question number two, what is the substantial hardship financial or otherwise which would result from little enforcement of the provisions of the bylaw? Uh well nowhere is less than 50 feet on that property. Not at all.
there's no place to put anything on that property. Um it would be significantly expensive to to do anything with the shed other than hopefully allow it to stay uh with mitigation and um you know
a mayor Koopa from us. And then the third thing, how do we believe that the variance may be granted without substantial detriment to the public good and without nullifying or substantially deriggating the intent or purpose of the bylaw? Uh we've got nothing but compliments from the neighborhood uh
from the neighbors. We believe it blends with the culture of the neighborhood with the aesthetic. Uh blends with the environment. We didn't disturb any trees. Um and we we believe it actually enhances the neighborhood um as our
neighbors were going to speak on but uh unfortunately can't be here to do that. Uh so hopefully you have a chance to walk the property. Um, if not, hopefully these photos lend a idea of what what
the property looks like. And, uh, that concludes our opening remarks. Uh, thank you for letting me speak and it's back to you. Okay. Thanks. Sure. Thank you. You want to start off? Uh, sure. Um,
I, uh, you're asking for a variance. I mean, I I've been here again, as I said earlier tonight, you were for years and never given one. Um, and uh it would be more for a house for
a hardship. I mean, what you're asking for here is, be honest with you, something that we can't give. I mean, this I mean, this is scarcer than hen's teeth, and that hen would have to have
lips, too. Um, we I'm sorry, but we we can't keep this. I certainly can't. I I feel bad for you, but that's 1.7 ft is we just can't do it. I can't do it
anyway. Sorry, Frank. I think we can do it. Um, I visited the property. Uh I concur with the representations of the applicant
that the topography out there is very very unusual. Um there's probably very little very little flat space uh to put it. Uh now even though this property this shed which is by the way a very unusual shed having stained glass windows. I never
saw that before. But anyways I'm glad he said it's a utility shed. Um even though it's 1.7 feet from the street line as he said earlier it's 18 feet from the traveled way which is considerably more
and I don't think the street is ever going to be moved to the edge of the of the rightway which is 40 ft because of the slope of that land that travel way is going to remain where it is and it's quite a bit higher actually than the uh
than the shed which is quite a bit lower than to the traveled way. So, um, we have a situation here where one, he needs a special permit for an accessory structure in the front yard, but it can't be less than 50 ft. And then he
needs the variance to be less than 50 ft. I think he meets the criteria for for a variance because the soil conditions are unique. Well, I don't know what the soil conditions are, but the shape and topography of the land is crazy. And uh there's no other place to
put this. So this is the only makes it makes sense to put it where it is. And I do believe that there would be a substantial hardship to the owner uh to deny the variance. And as far as there being a substantial deriggation from the uh purpose and intent of a zoning bylaw,
I don't see where it would bother anybody. There's no neighbors out there to speak of. Hardly anybody's going to see it. And the people who are going to see it are going to see it. It's just the same people living on the street. So, if this were on a main street in town, I would feel differently, but this is out in the woods where nobody's going
to see it, so I don't care. Okay, I did drive it. It is really slloy. I do think you can move it, though. Even when you're in your own picture, there's flatlands that would bring you away from the street. Not much of a flat land, but a little bit. I I don't think
you could trailer anything into it or anything, but it it can be moved. I feel that's all I have. Jim, u I agree with Mr. Duffy having gone out. I think the topography is and the lot shape and size is very unique. U a
variance is extraordinary relief though. Um the concern I always have with these situations is that as they say it's it's easier to ask for forgiveness than get permission. Uh, is were you unaware that you were in wetlands and you had these setback
requirements? Uh, I I can't speak for my stupidity on this except for no. Uh, I mean, where I grew up in the mountains of New Hampshire, you kind of do what you think you like to do for your property or on your property. But
what part of New Hampshire? Lakes region. Danbury. Sure. I used to live in Tilton. Oh, okay. Yeah. is uh you basically build what you want up there. Um got it. Yes, please. Thank you.
Um this was also during the time of lockdown and had we I think ought to ask um people weren't really working at that time. It's all online. Okay, it is
I I would agree with the analysis of Mr. Duffy though that although it's 17 from the delineation of the edge of the the private road the road actually though it's it's closer to 20 ft u the topography is very unusual so I I think that a variance can be granted u the
reason I would be inclined to do it too is uh concom is requiring significant mitigation uh about the coastal issues as well as or basically because of the conservation violations. So that was my primary concern about location uh and that given
that the order of conditions and such I I I would be a favor. The shed triggered those violations. It did. Yes. Among those others did. Well, could could I also point out that my entire house our entire house is 17.9
ft from the property line which is less than where the shed is to the actual usable road. Just throwing that out there for more more ammunition for what's referred to as pre-existing non-conforming. Okay.
You have children? We do, which is uh Yeah, we have a a teen teenager and my daughter's 20. That's that was part of the reason for needing storage for toys. And they're good at hills. Yeah.
I Go ahead, Tony. when you um built this prior to February 24, you did it without a building permit. And I just heard why maybe you didn't, but that doesn't preclude that it requires a building permit. Had you
applied for a building permit, you would not have created a self-imposed hardship. You would have been told no, can't do that without getting a variance. Uh you would have known that you had to go to conservation because you're
working in 100 foot buffer. So right now the way I see it is that you created this hardship not because the land or the topography is the hardship which it would be. It's definitely a hardship. I did go out to the property but
in my view I'm not an engineer. In my view this shed could be on the right side of the house. You have an option. may not be the one you want, but it couldn't go on the other side of the house. This is a very, very difficult piece of land. We have a lot of that
down here. But you created this hardship because you went around the building permit requirements where you would have found out at that point in time that you got a problem. So, I don't see how this board can give you a variance because
you created the hardship. It's not the land. You would never have done this because you would have been told it is an issue. So this is a self-imposed hardship as far as I can see versus the topography. Although that exists, but
you created this. That's my issue with this. I understand that issue as a reasonable person. Um that being there's nowhere on this property that's within that's flat enough to do this within 50 ft or
outside of 50 ft. But you would not have you would if you if you had filed for a permit, right? You would have been told and you would never have done this. You would have been told you got a problem. You can't do this. And therefore, because you didn't file for that permit, you now
have created a hardship for yourself, which you're now asking this board for relief on. And I don't know, just because the topography is difficult in this case, I don't know why we would do that. I just don't understand why we would do that. I have a question following up on something you've raised
to through you to the administrator. Marine, what is the maximum by right that or what triggers the need to get a building per? Is it over 200 feet or 400 ft? 200. This is still it still has to meet
everything else. Oh, no, no. Absolutely. I'm I'm just as to the building permit issue. I'm just And it's over 200. So, and I do agree with uh Mr. Def Mr. Morris. This is way out there, so to speak. No one really can see it. Whether
or not this road will be uh paved at some point in time. I I have no idea. I don't even know if it's a private way or public way. If the town controls it or you folks control it through an HOA, so I have no idea whether this road will be It's a private road.
Yeah, I I'll say we we acknowledge we did the wrong thing. Mhm. I I would say we we acknowledge we've we've done the wrong thing. Uh but we have been here repeatedly working with Mrs. Street and conservation to try to
make it right. So I guess that's why we're here, you know, appealing to you for for relief from yes, the self-imposed hardship that we may well put upon them. So I guess that's the crux of it. We're
asking for relief. Thank you. Yep. Nick, do you have anything? Um, I think it's a tough situation considering that we've treated other varants applicants. I mean, we have you have to
meet all three of the requirements. Varian, huh? Varian. Varants. Yeah. What I'm saying is I think you have to stay consistent on this. You have to meet all three. The hardship is not was imposed.
um by them. So again, to stay consistent, I I feel for the applicant, but it opens a can of worms, I think, and sets a precedence on other decisions that may come about in the future on variances, especially one that may
was able to find a few other cases where you have voted in the favor of the applicant. Um, case 052-24 was a garage with a habitable space and pool in the front yard, a garage and a pool and
50 ft though. 02 Sure. But okay. Um, there still a variance I would argue, right? The 02725 was the cabana pool and a sports cart court in the
front yard. Um, I don't know how this happened, but it was a guy on Dear Por Road with a a house, a lighthouse, a school, a workshop, and a garage on a tiny property. Um, so I know there has been precedent in the past. I'm not a
lawyer and I can't argue to those cases, but I think it's with well within your your rights to to see this case uh and how it relates to the other cases that have come before for a variance for something in the front yard like this.
When I when I say what I say, it's because variances are very rarely given out. Yeah. And when they're creative or self-imposed, in this case the way you did, makes it even more difficult.
Do I believe you could at expense take this building up and move it to the other side of the house? Probably. But it's going to cost to do that. A very difficult lot. It's and I and I feel terrible about saying what I've just said, but it's what I've
said is is accurate. I I do. I feel terrible about this. I wish it's I wish I were not sitting here right now talking about this. I think you you created your situation. Anybody have any further questions up here before I go to the public?
Anybody from the public want to speak on this? No. Well, any comments on the variance? The house is pre-existing. Has the front set back? Yes. Yes. So, can you do this by special permit
rather than variance? No. 50 ft. It's front yard too. It wants to approach in the front yard with the construction. So, that's a extension of conformity. No, it's a variance here.
Variance. We have done some when they have a lot of, you know, nothing at 1.7 ft ever, right? That I'm aware of. Okay. So, we're all set. Do you have anything further? Not at this point. You have anything further?
Does he want to consider withdrawing to consult with an attorney? That's an option. I suppose he needs to consult with an excavator. Oh, I I I agree with you, but I'm just trying to make I'm trying to make something work here, and I don't
know how to make this work. He is you he is right probably though to allow him the opportunity to withdraw. I mean no I I don't disagree. No I I I withdraw. Yeah. Go ahead. You can
you I know there was a zoning enforce excuse me a conservation enforcement. Have you received an enforcement letter from the building commissioner about this shed at this point? Yes. That's how it got kicked off which is why I didn't see that on the file. just saw the uh I just saw the concom. But all right,
but maybe if he withdraws, he can clean up the mess. What did theorman order say in front of the building commissioner? What did it say? Well, I can tell you what I was told by Mr. Street when we had all our meetings
um that he would grant the permit if I could get conservation and um zoning to agree with it. He's He's willing me to issue me a permit after the fact. That's a giant if
if All right. But sure. All right. I think enough people that have driven by have seen that it is what it is. It's not a nuisance. It's not a uh hindrance of the neighborhood.
Have you considered moving it? Have you looked into what that would take? The yes, there are power lines immediately above the shed, which would and all these every single dot you see here is a tree. So, I'd have to
have to take down trees, get an enormous crane to come up and over the shed to lift it back up and over the wires up the street and up here. I mean, it this is not flat, but you could move it in pieces and eliminate the crane expense of
I mean, okay. I I mean, you could put it I don't know, but you still need to excavate a spot on the right hand side of the house. I would accept it. And I I I appreciate you trying to give me options to to move it. I just don't see
how it's feasible to to stay within even the 50ft buffer. I mean, this is 17 feet, double that. Here's 34T and then I'm on a property line. There's just no space for that. Well, in all honesty, this isn't and
shouldn't be an option. I'm sorry. He certainly can come back. Madam Chair, he's not looked into Well, he's he believes that it' be difficult to move it. I mean, I know you can move
it. It's it would be expensive and you can do it a couple different ways. It would be that this it's a very difficult lot, but maybe he should have that option of maybe spending some time with a contractor. That's what I was just thinking. That's what I was just kind of saying that if he withdrew at least
I mean if he's denied he has no option but to do that because he'd be told to tear it down, right? Or move it. Or move it. Yeah. So I mean that's the same same thing. Same thing. I mean uh I mean we we can't legally we can't do this for him
unfortunately. I think he can. I think he might not want to out of precedence. I think you can. I think you're a powerful board. That's where the problem is. Then everybody's going to want one. You're 1.7 ft when you need to be 50.
Yeah. I mean it's just it's it's too much of a reach. Um All right. And we don't give these things out difference. No. So I think we just vote. Um a motion to close.
Are you all set? Okay. What is he doing? Withdraw. I don't think it's going to make a difference. That's what I was just discussing with him that even if you withdraw, you're going to end up moving it. You're going to what are you going to do? Come back and ask us to have the
shed the same spot? I mean, it's not going to withdrawing isn't going to do you any good? I don't think it's going to make any difference. Well, the withdrawing part gives them an opportunity to explore options. Am I wrong? But this isn't an what they have isn't an option. If if this board denies and it sounds
like that's where we're headed. Denies it. He That's it. It's done. It's all He's got six months, I think, doesn't he? Does he? No. There's no time frame. So then that he would still move it rather than tear it down because they he'll be
and that enforcement mechanism right and that enforcement mechanism is still in progress right now. I mean as much as we'd like to we can't do anything for him and he will save money on the mitigation if he goes on the other side.
See that picture right there? Looks like he can move it down to Well, he's going to still be he's in the he still be in the 100 foot buffer, which means now he's got to file again with Concom has a completely different situation. He's got to he's got a um
he's got to replace some plantings and things of that nature. He's got a very difficult situation here. And he's going to have to file again with I I suspect you have to file again with Concom because he's in the 100 foot buffer. Yeah, absolutely. So, I don't know, Madam Chair.
I don't think the the withdrawal wouldn't really make a difference. No, it wouldn't. Am I right? No, it would trigger the enforcement action is still it would trigger the Either way, it's triggering the enforcement action if it's a denial or or a withdrawal. All right, I'm ready to just vote then.
You guys all set? Do we have a motion yet? Yeah. Motion to close. Oh, motion to close. We have second. We're closing. Everybody's okay with closing. Motion to close. All in favor? I I opposed. None. You're on this one, right? Yes. Okay.
Okay. So, in terms of finding, we have to make findings of fact the property is in AGA district. The shed is 212 square ft. Uh so, it did require a building permit because the limit for shed without a building permit is 200
square ft. Um the uh shed was built in the year 2021 uh by the owner without a building permit. Um the shed is located 100 excuse me 1.7
ft from the property line at Deer Pond Road, but it is 18 ft by testimony of the applicant from the traveled way of Deer Pond Road. Um there's no issue uh Deer Pond Road, by the way, is a private uh right of way
at this location. There's no issue with lot coverage by structure or lock coverage by structure parking and paving. They're both within limits. Um I did mention the referrals from the various departments, but I note again that there is an enforcement order
outstanding from the conservation commission dated February 15, 2022. Um now under section um two he needs two forms of relief. The first is a special permit under section
11.4A1. Um the ZBA may issue a special permit for an accessory structure in the front yard but not less than 50 ft from the street. So we're voting no and denying a special permit. Um
and because we've denied it, we don't really have to get to the issue of variances. So um and we find that the site is not adequate for the proposed use. It is not suitable for the proposed use. No issue with traffic. Uh there's no issue with
neighborhood visual characters, no issue with sewage or utilities or affordable housing. But it's a site um which although it is uh very unique at very unique topography, it is not adequate um to conform to zoning bylaw.
You should probably mention Gary's letter that too. Didn't you only say concom Oh, Concom issued an enforcement order and the the building commissioner issued a letter saying that he would issue the permit if he got a permit from this board, but he hasn't.
I looked at this property when it was for sale. Is that all we need for this? Do we need other Do we need anything else for denial? Special permits. That's the criteria. If we were addressing the the variance, then yeah, we would need the special permits to go.
No, no. I'm saying we don't need additional findings. I think we're all set. We're good. Ready to vote, everyone? All those for denying the ver the um motion the motion. Yeah. I
denying deny I I in favor. I'm a No. I think we could have granted some. You could and Frank. Did you say with Jim? Okay. 32. So it's a 3-2 to deny. Yes.
Sorry. Thank you for your service though. Thanks. I'm sorry about this. All right, moving on. Are we doing any minutes? No tableing minutes. Board discussion,
board updates. I did want to remind everyone we're going to shoot for a Saturday in October at some point. Ash will probably give us an email, you know, some point. No rush on that. Future agenda items. We're all set. Our next meeting is
August 21st at 6 p.m. Mark. Motion to adjourn. Madam Chair, August 21st. I'll second. All those in favor? Hi. Hi. Awesome.