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Wellfleet Planning Board

    ZONING

    Wellfleet Planners Drop ADU Initiative

    With Parent opposed, an independent group takes up the cause

    By

    WELLFLEET — Citing what board member Beth Singer called “insurmountable” obstacles, the planning board officially ended its three-month effort to draft a joint bylaw regulating accessory dwelling units (ADUs) and affordable accessory dwelling units (AADUs) at its Feb. 17 meeting.

    “That’s done,” said chair Gerald Parent. “Over with.”

    The planning board began re-examining the existing AADU bylaw — a two-decade-old relic — last December. Board members said the bylaw offered too small a financial incentive to lure home owners away from the promise of Airbnb rates and summer rentals, and the “affordable” designation created too much red tape for renters.

    On Jan. 6, the board settled on drafting an umbrella bylaw as its best course of action. The bylaw would both legalize Wellfleet ADUs and allow for qualifying units to transition easily between ADUs and AADUs — opening year-round rentals up to a larger swath of town residents.

    But at the board’s Feb. 3 meeting, the initiative hit a snag. Parent reported a development he called “horribly sobering.” He said that conversations with town counsel and Building Inspector Paul Fowler had made it clear that turning any accessory unit in town into an accessory dwelling unit (the crucial difference between, say, a shed and a small apartment is the existence of a kitchen sink, stove, and space for a refrigerator) would trigger Wellfleet’s definition of “new construction.”

    That would require the home owner to bring his septic system up to current Title 5 regulations. Given the prevalence of Wellfleet houses with their own wells and septic systems, “that cuts out an awful lot — a majority — of the houses in Wellfleet,” Parent said on Feb. 17.

    He is “not against affordable housing,” Parent insisted. But at the Feb. 3 and Feb. 17 meetings of the board, he emphasized again and again what he called the futility of proceeding with the new bylaw.

    To some present at the Feb. 17 meeting, though, his argument seemed shaky. In a lengthy statement, Select Board Chair Michael DeVasto questioned whether Parent had done due diligence, and whether Title 5 regulations should affect the planning board’s business at all.

    “It doesn’t seem like the health agent or the board of health was consulted,” DeVasto said. “I’ve spoken to the health agent as well as an attorney about the interpretation of ‘new construction.’ I have gotten different readings on that.”

    Health Agent Hillary Greenberg-Lemos did not respond to a request for comment before press time.

    “The planning board is not the permitting agency for Title 5, and Title 5 has nothing to do with zoning,” DeVasto continued. “So, really, the issue here is whether the planning board should be basing their potential bylaw on something that they don’t have the authority to permit — to even interpret, really.”

    Board members Beth Singer, Olga Kahn, Bonnie Shepard, and David Mead-Fox pushed back against the notion that the potential bylaw’s limited scope rendered it irrelevant. “Isn’t it good if one person can do it under all the conditions we set?” asked Singer. Board member David Rowell: “No.”

    In the face of Parent’s opposition, another group of citizens decided to take up the initiative in the form of a petitioned town meeting article. In a Feb. 12 letter to Parent and the planning board, Sharon Rule-Agger of the Local Housing Partnership and Elaine McIlroy of the Housing Authority — two of the most prominent advocates for ADU-AADU reform — expressed their frustration.

    “We feel that it may be necessary to move forward independently with a new ADU bylaw should we not reach agreement with the Planning Board soon,” they wrote. “We realize a new ADU bylaw will not by itself ‘fix’ our year-round housing problem. Nevertheless, we feel that every legal avenue should be pursued regardless of the small numbers of dwelling units it might yield.”

    Helen Miranda Wilson of the select board added her voice. “I am their secret weapon,” she said at the Feb. 17 meeting. “The draft will probably have better language than most petitioned articles.”

    Under the town charter, any 10 registered Wellfleet voters can submit a petitioned article for the annual town meeting warrant as long as it is filed at least 60 days before the date of the meeting. The select board has tentatively set this year’s meeting for June 5, which would make the deadline for petitioned articles April 6.

    The challenges of getting a zoning bylaw passed as a petitioned article “are not insurmountable if it’s done in a certain way,” Wilson said.

    Parent had his doubts. “Most of the time when a petitioned article is placed,” he said, “it has a lot more serious problems than when the planning board does it.”

    “I was on the planning board,” Wilson told the Independent. “I’m kind of a drafting mule.”

    Editor’s note: An earlier version of this article stated incorrectly that March 1 was the deadline for submitting petitions for the annual town meeting warrant. The correct deadline is 60 days before the date of the meeting.

     

    This Week In Wellfleet

    Meetings Ahead

    By

    Meetings are held remotely. From wellfleet-ma.gov, hover over a date on the calendar on the right of the screen and click on the meeting you’re interested in to open its agenda, which includes information about how to view and take part remotely.

    Thursday, Feb. 11

    • Joint meeting of the Nauset School Committees, 6 p.m.
    • Zoning Board of Appeals, 7 p.m.
    • Nauset Regional School Committee, 7 p.m.

    Mon, Feb. 15

    • Bike and Walkways Committee Community Forum, 7 p.m.
    • Dredging Task Force, 7 p.m.

    Tuesday, Feb. 16

    • Emergency Management Team Covid-19 community update, 10 a.m.
    • Energy and Climate Committee, 4 p.m.
    • Cultural Council, 5:30 p.m.

    Wednesday, Feb. 17

    • Cemetery Commission, 10 a.m.
    • Conservation Commission, 4 p.m.

    Conversation Starters

    Covid-19 Update

    Wellfleet had nine new cases of Covid-19 in the 14 days preceding the Mass. Dept. of Public Health’s weekly report, published Feb. 4. The town has recorded a total of 48 cases and one death from the virus.

    Housing Angels Wanted

    The local housing partnership, housing authority, and the new affordable housing trust are seeking housing angels — private land owners who will either donate or sell, at a reduced price, their land or home to the Wellfleet Affordable Housing Trust.

    Access to town-owned land has dwindled and options are truly limited, said Elaine McIlroy, chair of the housing authority. The shortage of affordable year-round housing is critical, she said, and the situation has only gotten worse in the past year. “We are hoping someone will leave a legacy,” said McIlroy.

    —Tessera Knowles-Thompson

    Planning Situations

    At their Feb. 3 meeting, members of the planning board discussed clear-cutting and reckoned with the practical challenges of their planned new affordable dwelling unit bylaw.

    Though Chair Gerry Parent did not mention 1065 State Highway or its owners, Donna and Steve DiGiovanni, by name, the board spent much of the meeting discussing a potential bylaw regulating lot clearing — which the DiGiovannis did before Building Inspector Paul Fowler issued a cease-and-desist order.

    Fowler was previously the building inspector in Dennis. He provided the board with Dennis’s lot-clearing bylaw, which opens with “No construction or site preparation work shall be done on any land including the removal of living trees of greater than 4-inch caliper measured 6 inches above grade or the removal of greater than 10% of existing vegetation until all necessary permits and approvals have been obtained….”

    Parent said a zoning bylaw definition of lot clearing would allow the building inspector to be more proactive and prevent another “situation” like the one on Old Wharf Road. But board members Beth Singer and David Rowell focused on details, objecting to what they called overly stringent regulations.

    “Only four inches?” asked Rowell.

    “I don’t like this at all,” said Singer.

    Parent also presented what he termed “horribly sobering” news: that drafting an ADU bylaw would be essentially impossible. Wellfleet’s definition of “new construction,” he said, would mean any resident interested in building an ADU would have to “bring existing septic systems up to the current Title 5 — which basically eliminates a tremendous amount of Wellfleet.”

    The board did not vote on whether to drop the ADU initiative, but its future looks bleak.

    —Josephine de La Bruyère

    PERMISSION SLIPS

    Town Orders DiGiovannis to Cease and Desist

    Owners bypass rules and clear Route 6 lot for septic operation

    By

    cease
    Donna DiGiovanni’s Great White Realty Group has plans for a contractor’s yard for a septic system and excavating company on the land recently cleared at 1065 State Highway in Wellfleet. (Photo Teresa Parker)

    WELLFLEET — The Great White Realty Group LLC closed on the purchase of the 1.38-acre lot at the corner of Route 6 and Old Wharf Road on Friday, Jan. 8. On Jan. 9, tree-cutting and excavation work began on the wooded parcel.

    Donna DiGiovanni of Truro is both the resident agent and manager of Great White Realty. On Jan. 14, Wellfleet Building Inspector Paul Fowler issued a cease and desist order to the new owner for violating two town ordinances: sections 8.2 and 5.3.3 of the zoning bylaw.

    Section 8.2 is about permit requirements. “No building shall be built, altered or moved and no use of land or building shall be begun or changed without a permit having been issued,” the bylaw states.

    “That was a lot that was heavily wooded at 2:30 in the afternoon on a Friday,” said Gerald Parent, chair of the Wellfleet Planning Board. “And it was stripped of almost every tree by 4 o’clock on Saturday.”

    The total clearing effort, which zoning board of appeals chair Sharon Inger called “really striking, and really sudden,” was remarkably efficient. One problem: it was also distinctly unpermitted. Given the extent of the clearing, DiGiovanni needed, at the very least, to apply for a clearing permit from the building dept. before beginning work, said Inger. She did not. The clear-cutting also extended all the way to the lot line, said Parent, ignoring Wellfleet’s requirements for frontage preservation.

    When Fowler visited 1065 State Highway (which Parent said happened on Monday, Jan. 11, though Fowler would not confirm that date), he found that DiGiovanni had not only cleared the property but had also begun bringing in and moving fill. Fowler said that violated zoning bylaw section 5.3.3, which prohibits open bulk storage — “exposed outside storage of sand, lumber, coal or other bulk materials or supplies” — on commercially zoned parcels without a special permit from the board of appeals.

    “They needed to come get permits, tell us what they were going to do, and then start working — rather than start working and then go ‘Oops, I’m sorry,’ ” said Inger. “One has to assume they felt that it was their land, and they had a right to do anything. But Wellfleet doesn’t like that.”

    Donna DiGiovanni, 61, and her husband, Steve, 62, are no strangers to Outer Cape zoning and business regulations. They co-own The Gallery, on Route 6 in Eastham. Donna DiGiovanni owns Truro Waterfront Homes, a rental operation in Truro. In 2012, Steve DiGiovanni sued the Truro Zoning Board of Appeals and a number of Truro neighbors after the ZBA concluded that the marketing and renting of a development he owns there was “inconsistent with and contrary to the intentions and purposes of the governing residential zoning district.”

    The day after Fowler made his cease and desist order official, the building dept. received a permit application from the DiGiovannis for site clearing. That application is “incomplete, still under review,” said Fowler. The DiGiovannis, who, like their attorney, Ben Zehnder, did not respond to repeated requests for comment for this article, have submitted no official plans for the property.

    They have hinted at some, though. In an emailed statement to the Independent last week, Donna DiGiovanni said her “current plans for 1065 US-6 is to provide a contractors yard for GFM Enterprises.” GFM is a South Dennis-based excavating company specializing in septic systems. And last week, the DiGiovannis submitted a request to Wellfleet’s DPW for a curb cut from their lot onto Old Wharf Road.

    That request incensed Old Wharf Road residents and neighbors who, said Parent, “activated very quickly, and wrote probably more letters on one particular subject than I think the planning board and board of selectmen have seen in a long time.”

    DPW Director Mark Vincent could not be reached for comment. But Wellfleet Police Chief Michael Hurley said Vincent had reached out to him for advice, which he had provided.

    “I had some real concerns about the request,” said Hurley. “You have sightline issues that are there clearly as you come on or off the highway. It’s a winding road. There’s a traffic island there, so the heavy commercial vehicles would have trouble navigating through there. It’s the one road into many populated neighborhoods and to beach access. Real concerns.”

    Vincent agreed. Town Administrator Maria Broadbent announced at the Jan. 26 select board meeting that the DPW had denied the curb cut request. “Granted,” she said, “due process is in order, and the applicant has the option to appeal that.”

    The DiGiovannis have 30 days to appeal the DPW’s rejection of their application. They can take their grievances to the zoning board of appeals, where, said Inger, “they’d really have to make their case.”

    HOUSING

    Planning Board Debates Changes in AADU Bylaw

    Affordability in accessory dwelling units is addressed

    By

    WELLFLEET — The planning board voted 5 to 1 at its Jan. 6 meeting to draft a new umbrella bylaw regulating both accessory dwelling units (ADUs) and affordable accessory dwelling units (AADUs) in town. The current bylaw allows only for AADUs; existing ADUs are illegal and not monitored.

    Chair Gerald Parent and members Beth Singer, David Mead-Fox, Bonnie Shepard, and Olga Kahn voted in favor of the change. Member David Rowell, advocating instead for two separate bylaws — an edited version of the old AADU bylaw, and a new one regulating simple ADUs — was the lone dissenter. Member Alfred Pickard Jr. was absent.

    Since 2002, Wellfleet home owners whose property includes an accessory unit smaller than 1,200 square feet have been able to apply for and receive the “affordable” designation. In 12-month leases, the home owners can then rent their units at an affordable rate (set through a special permit from the zoning board of appeals) to “income-eligible households,” defined as those that earn less than 120 percent of the area median income, or AMI.

    In theory, the AADU program is meant to address Wellfleet’s shortage of year-round affordable housing. But in practice, as reported in the Dec. 17 issue of the Independent, it has proved to be only minimally effective. Though town assessor Nancy Vail said 180 Wellfleet properties include at least one secondary dwelling unit, only 11 AADUs exist in town.

    That is the ostensible reason the planning board revisited the program, beginning on Nov. 4. Two ADU/AADU-related issues were on the table at the Jan. 6 meeting: first, whether members were in favor of discussing a zoning bylaw addition for ADUs (they were, unanimously), and, second, whether the new ADU bylaw should stand alone, which might further hamper the struggling AADU program, or be lumped in with updated versions of the current AADU regulations.

    Citing the AADU program’s red tape, Singer, Shepard, and Kahn strongly supported merging the two bylaws. Kahn has rented out a secondary dwelling she owns as part of the AADU program for 16 years, and she was the first to propose a merged bylaw, which would keep the AADU program relevant.

    “If you rented out as affordable to a year-round affordable renter, and your renter has good fortune and gets a raise and gets above the income limit, there [would be] a seamless and easy conversion to just having it be an accessory dwelling unit, and vice versa,” said Shepard in support of having one all-encompassing bylaw.

    Parent agreed. “We’ve got a situation where people are under the AADU and, all of a sudden, are really at the threshold and can’t take a raise because, if anyone looks over their back, they’re making too much money,” he said.

    A single bylaw, it was argued, would allow home owners with qualifying secondary units to receive just one permit and make a no-fuss transition between renting it out as an ADU and AADU. Wellfleet’s Affordable Housing Tax Exemption — which offers a tax break to home owners renting to income-eligible tenants based strictly on that tenant’s income level, and not on AADU designation — would remain the same.

    Rowell wasn’t convinced of the threat of losing AADU status. “That’s never happened,” he said. “Nobody’s ever been thrown out.”

    Besides, Rowell added, the blanket ADU/AADU bylaw, which he called “a loaded gun,” might have implications that reached further than the board realized.

    “In effect, we’re allowing two-family residences throughout the town of Wellfleet,” Rowell said. “That’s what we’re creating. Understand the significance of that.”

    Parent seconded Rowell’s concerns, reminding the board that allowing widespread two-family residences on single plots could strain the town’s water and septic systems. But the board nevertheless voted to pursue a merged bylaw.

    At its next meeting, the planning board will begin the process of actually drafting the bylaw for approval at town meeting.

    “Now we’ve got to write a bylaw — and rip it apart!” said Rowell.

    This Week In Wellfleet

    Meetings Ahead

    By

    From wellfleet-ma.gov, hover over a date on the calendar on the right of the screen and click on the meeting you’re interested in to open its agenda and see how to view and take part remotely. 

    Monday, Nov. 30

    • Dredging Task Force, 7 p.m.
    • Cultural Council, 5:30 p.m.

    Wednesday, Dec. 2

    • Conservation Commission, 5 p.m.

    Conversation Starters

    Covid-19 Update

    As of Nov. 18, Wellfleet had five active cases of Covid-19, eight cases considered recovered, and one death from the virus.

    To Plan or Not to Plan?

    Just under its 90-minute mark, the Nov. 17 planning board meeting debated the question of what a planning board actually does.

    The Wellfleet Town Charter charges the planning board with making “recommendations to the town meeting and the town administrator on all matters concerning the physical, economic, and environmental development of the town.”

    Board member David Mead-Fox cited that clause, asking, “Do we have an appetite — do we have the authority — to take a more proactive role about things that are going on and challenges facing the town?” he asked.

    Some board members offered Mead-Fox varying shades of support. “I have some sympathy for what David is saying,” said Bonnie Shepard. “If the function of the planning board is actually what it says in the charter, we ought to be doing more medium-term planning than we are now.”

    But others shot Mead-Fox’s ambitions down.

    “I think it’s too broad of a subject — it’s beyond our purview,” said a board member whose video was turned off and whose screen name was “MR. PINK.” “I don’t think we’re particularly qualified…. We can’t even deal with what we’ve got.”

    As for chair Gerald Parent, the idea of the planning board working with other town groups appeared distinctly unpalatable.

    In the past, he said, the planning board’s recommendations “have quite frankly fallen on deaf ears.”

    “I just get a little frustrated and tired with bringing up all these subjects to the upper management team and just getting thrown away,” Parent said.

    “We’re all on a team here, guys,” responded Mead-Fox.

    —Josephine de La Bruyère

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