WELLFLEET — A plan for a two-story house on the outer shore of Lieutenant Island is expected to come back before the Wellfleet Zoning Board of Appeals now that a state Land Court judge has annulled the ZBA’s denial of a special permit for the project in February 2021.
The owner and the prospective buyers of the property at 41 9th Street had appealed the denial.
In her mid-June decision to grant summary judgment, Judge Diane Rubin called the board’s decision “unreasonable as a matter of law” and ordered that the plaintiffs be allowed to resubmit their application for a special permit.
At issue is a small, currently vacant lot that has been in the Mandell family for about 100 years and is now owned by several family members under a trust. In June 2016, fire destroyed the small cottage there. The family hoped to rebuild, but that proved to be too expensive, so the Mandells put the property on the market.
The 15,245-square-foot lot is nonconforming; Wellfleet zoning requires a minimum of 30,000 square feet for a building lot. But the parcel went under agreement in June 2020 to Donald Bliss and Damon Kirk of J&B Construction of Mashpee for $492,000. Under the agreement, which remains in place, the sale will be finalized when Bliss and Kirk secure all the permits necessary to build a house.
Bliss said he plans to return to the ZBA with the same proposal he submitted in the fall of 2020. It calls for a 2,500-square-foot two-story house — considerably larger than the 550-square-foot cottage that burned down but similar in size to houses in the area. The footprint would be 1,800 square feet.
In its decision, the ZBA considered local bylaw provisions that apply to nonconforming structures destroyed by catastrophes. The provisions require that rebuilding begin within a year and be completed within two years. They also stipulate that the rebuilt house be essentially the same as the one that was destroyed.
The plan submitted by Bliss and Damon did not fit within those criteria, the board ruled.
The attorney for the Mandells and J&B Construction argued that the special permit should be considered under a different bylaw provision that applies to alterations of existing structures on pre-existing nonconforming lots, since its provisions include reconstruction.
Under that provision, the new structure must not be “substantially more detrimental to the neighborhood than the existing structure.”
Board members, however, said they could not apply that bylaw provision because currently there is no structure on the property to compare with the proposal. Ultimately, the vote was 3-2 to deny the special permit.
Members C. Wilson Sullivan, Michael Lynch, and Trevor Pontbriand voted to deny the permit; current chair Sharon Inger and member Janet Morrissey voted to approve it. All are members of the current ZBA.
In her decision, Judge Rubin said that the owner of a pre-existing nonconforming house can demolish a house simply because they wish to have a different type of structure under the town’s bylaw. At the same time, those who have lost their homes involuntarily following a catastrophe would be subjected to “more draconian regulation than those who simply want a larger house,” the judge said. It was for that reason that Rubin said the zoning board’s interpretation of the law in the Lieutenant Island case did not make sense.
Richard Thaler Jr., who owns a large house on Meadow Avenue West that abuts the Mandells’ property, had opposed the project during public hearings and joined the court case as an intervenor on the side of the ZBA. Thaler’s attorney argued that the plan would affect an existing easement his client had across the Mandell property, which he uses to access his own.
Based on the minutes of the initial hearing, Thaler complained that the design of the proposed house differed from the original. He added that homes in the area already had problems with “salty water.” While he expressed concern that water use to revegetate the property could affect water quality in the area, the conservation commission had already attached a condition to its approval that disallowed that use of the water.
Attorney Kevin Kirrane, the lawyer for the Mandells and J&B Construction, said the proposal would address some problems created by the original cottage, which extended past the property line onto Meadow Avenue. The proposed house would meet all setbacks and have only 12 percent lot coverage.
Regarding the dispute over the easement, a new easement will ultimately need to be agreed on and recorded at the Registry of Deeds. The zoning board had said during its initial hearings that the easement question was outside its jurisdiction.
Thaler filed a motion in Land Court for reconsideration of Rubin’s decision to annul the permit denial on June 24. The judge denied that motion four days later, saying there were no changed circumstances that would prompt her to reconsider.
ZBA Chair Sharon Inger said last week that her board is aware of the court’s decision and will be ready to take up the permit request again once it is submitted.
Under the judge’s order, the court will retain jurisdiction over any appeals that may result from the zoning board’s new permit review. Anyone wishing to appeal the outcome of that review will have to file with the court within 20 days of the board’s new decision.
If there are no appeals, attorneys for both sides must file a joint motion for dismissal, ending all further rights of appeal, the judge said in the order.
