WELLFLEET — The zoning board of appeals is expected to reverse its decision of two years ago and approve a plan on March 9 for a 2,500-square-foot two-story house on the outer shore of Lieutenant Island where a 556-square-foot cottage once stood.

The board’s earlier decision was appealed to Land Court, where a judge reasoned that the town’s  bylaw regulating nonconforming structures should apply in this case. During a straw poll taken on Feb. 23, four of five board members said they would vote in favor of the proposed construction.

The board delayed its formal vote because of an error on the submitted plans — they showed a stairway and a bulkhead even though the house won’t have a basement. Updated plans have been submitted, zoning board Chair Sharon Inger said this week.

The property, at 41 9th Street, has been in the Mandell family for about 100 years and is now owned by a few family members under a trust. In 2016, their small cottage was destroyed by fire. The family hoped to rebuild, but when that proved too expensive they put the 15,000-square-foot lot, now vacant, on the market.

In June 2020, the lot went under agreement 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 a building permit from the town.

But the zoning board determined that the proposal the pair submitted in late 2020 for a 2,500-square-foot house to replace the cottage that burned did not conform to the town’s zoning requirements.

At the hearing two years ago, the board considered bylaw provisions that apply to pre-existing, nonconforming structures destroyed by catastrophe. Those 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.

Attorney Christopher Kirrane, representing both the Mandells and J&B Construction, argued at that hearing that a special permit should be considered under a different provision that applies — catastrophies aside — to alterations of pre-existing structures on nonconforming lots. The zoning board denied the request by a 3-2 vote.

Bliss, Kirk, and the Mandells appealed the denial in state Land Court, and the proposal is back before the zoning board because of a decision by Judge Diane Rubin, who said that, under the town’s bylaws, the owner of a pre-existing nonconforming house can demolish it simply because they wish to have a different type of structure. This case illustrated that the zoning board’s initial decision would mean those who have lost homes involuntarily after a catastrophe would be subjected to “more Draconian regulation than those who simply want a larger house,” according to the judge’s statement.

At the Feb. 23 hearing, J&B Construction returned to the board with its 2021 plan, which faced opposition from one abutter on the potential environmental and aesthetic impacts of the proposed building.

Richard Thaler, who lives at 250 Meadow Ave. West, opposed the project when it was presented two years ago, and he remains opposed. He had joined the court case as “an intervenor” based on his easement to the project site. The location of the house would displace the easement, he said. Thaler questioned the effect the house would have on drinking water quality. Wells in the area have elevated sodium levels, according to Thaler.

Attorney Kirrane said the project already has the approval of the conservation commission. He argued that, because the new house will be built on land between two coastal banks, it will be an improvement over the siting of the original cottage. The old cottage had been perched on the coastal bank and its footprint extended beyond the property line onto a nearby paper road.

Thaler’s attorney, Sarah Turano-Flores, sent a letter to the zoning board last month saying that J&B’s proposed house would be one of the largest on the island. Only four were larger, she wrote, and their lots were nearly double the size of the target property.

Kirrane argued that Turano-Flores’s figures took only square footage into consideration. The footprint of the proposed house was only 12 percent of the 15,000-square-foot lot, Kirrane argued. Smaller houses on the island standing on smaller lots cover higher percentages of those lots, he said.

Restoration ecologist Seth Wilkinson, who has worked on Thaler’s property to stabilize the coastal bank, said removal of the existing vegetation to build the house will remove deep root systems that are “the best remaining protection for coastal stabilization, filtration of stormwater, and preservation of high-value wildlife habitat.”

Jen Crawford, a land management consultant who had represented the Mandells during the conservation commission’s review two years ago, accompanied Kirrane on Feb. 23. Crawford had developed the restoration and replanting plan for the Mandell site. The commission felt that the project would be a net benefit, she told the zoning board. “There would be a net increase of vegetation on this property,” she said, “as well as an increase of vegetative buffer to the coastal bank on both the east and west side of the property.”

When issues related to stormwater from the property eroding the bank were raised, Crawford said the project site sits lower than the coastal banks. “There’s literally no way overland flow from this site can possibly get to the coastal bank,” she said.

While Turano-Flores raised the issue of an easement on the project site used by Thaler, zoning board Chair Sharon Inger said that wasn’t a zoning issue. “It’s an issue that is to be decided between the two private parties,” she said.

Inger and fellow board members Jan Morrissey and Trevor Pontbriand and alternate member Reatha Ciotti voted to grant a special permit in a straw poll. Wil Sullivan cast the only opposing vote, saying that he believed the adverse effects of the plan far outweighed the benefits. Those same board members will take a final vote on March 9.