WELLFLEET — A 9th Street property was advertised as an “ideal building lot at the outermost area of majestic Lieutenant Island,” offering prospective buyers a vision of glorious sunsets with refreshing ocean breezes “just a few feet from a stairway to a private beach.”
But getting permission to build on that lot turned out not to be a breeze.
The property, at 41 9th St., is the subject of a court battle, with the land owner and the prospective buyer suing the Wellfleet Zoning Board of Appeals for denying them the special permit they need to build the house.
The suit asks the Mass. Land Court to annul the ZBA’s decision and order the board to grant the special permit.
The property is owned by the Mandell Family Realty Trust and under agreement to Donald Bliss and Damon Kirk of J & B Construction in Mashpee. Eight months after the signing of a purchase and sale agreement, the sale has yet to be finalized because it is contingent on the granting of the building permit.
The property at issue has been in the Mandell family for about 100 years, but in June 2016 their small cottage there was destroyed in a fire. The Mandells spent 10 months getting the permits to demolish what remained of the cottage and clear the property of debris. They then spent several more months drawing up plans for rebuilding, only to find the project was going to be more than they could afford, according to the Land Court documents.
The Mandells put the property on the market and reached an agreement last June with Bliss and Kirk for a selling price of $492,000. The lot, which comprises 15,245 square feet, or a little over one-third acre, is currently assessed by the town at $431,300.
The two contractors conditioned the sale on securing all permits necessary to build a house with a footprint of 1,800 square feet. Their plan calls for a 2,500-square-foot two-story house that would be considerably larger than the 556-square-foot cottage that burned.
Progress on the building plan came to a halt in late January, when the ZBA denied the special permit needed to build a house on an undersized nonconforming lot. The minimum building lot size in Wellfleet is 30,000 square feet under current zoning.
The vote to deny the permit was 3-2, with Wil Sullivan, Michael Lynch, and Trevor Pontbriand in the majority. Chair Sharon Inger and Janet Morrissey dissented from the ruling.
The decision was based on the majority’s determination that the petition really couldn’t be considered under any of the town’s bylaws.
Wellfleet’s zoning does allow houses to be rebuilt on nonconforming lots after a fire like the one that occurred on this property, but only if the rebuilding begins within a year and is completed within two years. The bylaw also stipulates that the rebuilt house must be essentially the same as the one that was destroyed, which is not true in this case, the board ruled.
The attorney for the Mandells argued that the special permit could be considered under a local bylaw that applies to the alteration of existing structures, since its provisions include reconstruction. But board members pointed out there was no existing structure to alter, and there hadn’t been for more than four years. They added that they were unable to make a determination that the proposal was “not substantially more detrimental to the neighborhood than the existing structure,” a standard that applies to many zoning appeals, because there was no existing structure.
In the Land Court filing, Mashpee attorney Christopher Kirrane said the board’s decision “was in error, not supported by the facts or by the law and should be annulled.” The decision, Kirrane wrote, “was not based on legally tenable grounds.”
Kirrane added that an opinion from the town’s attorney suggested members could consider the granting of the permit under certain local bylaw provisions.
The ZBA had not yet submitted its response to the suit at press time. The owners’ suit had been filed by Kirrane on Feb. 12.
A case management conference — an initial hearing where the judge, the attorneys, and the parties meet to discuss the issues — has been set for April 12, according to court documents.
Editor’s note: Due to an editing error, an earlier version of this article incorrectly stated that under Wellfleet’s zoning bylaw reconstruction of a house on a nonconforming lot must begin within two years. The reconstruction must be completed within two years.