Zoning Board of Appeals Archives - The Provincetown Independent

Zoning Board of Appeals

CLEAR CUT

Judge Rules Against Sextons in Clearcutting Case

Trees are timber after all, a Land Court judge finds

By Christine Legere Jul 17, 2024

WELLFLEET — A Land Court judge has settled a dispute between the town and Kevin Sexton over the June 2021 clearcutting of a swath of woods on his family’s land next to the Lecount Hollow Beach parking lot. The property is in the Cape Cod National Seashore.

The town’s position was that cutting timber in the Seashore district may be done only to control brush or to maintain pastures or a right-of-way.

Sexton argued that the scrub pine he cleared did not qualify as “timber” and was therefore unregulated under local bylaws. He further argued that he did not need to get a permit before clearing more trees.

Sexton runs Cooks by the Sea, a cottage colony on 24.6 acres just south of the beach. It was one of the few businesses in operation on the shore before the 1961 establishment of the National Seashore. Cooks is thus classified as a preexisting nonconforming use, exempt from zoning provisions unless the use changes or is expanded. Sexton has argued that clearing areas to add parking and enlarge his driveway is not expanding the use of the land.

Sexton began cutting trees on the property on June 14, 2021. He did not have a permit, but his brother Kristian had that same day informed Paul Fowler, the town’s building commissioner, of the planned tree-cutting. It continued into the next day, when Fowler issued a cease-and-desist order.

A week later, Fowler issued a second notice saying that if Sexton planned to do any further cutting he would need to submit a plan for the proposed use of the cleared land.

Sexton appealed both orders to the zoning board of appeals. He argued that scrub pines could not be characterized as timber, which he defined as wood that could be used in construction or that had an economic value.

Sexton further argued that because private parking is allowed by right in the Seashore district as an accessory use, his plans did not represent an expansion of a nonconforming use and did not require a permit.

Both appeals were denied by the ZBA, and Sexton went to Land Court in September 2021.

In a ruling issued late last month, Land Court Judge Kevin Smith upheld the town’s cease-and-desist order as well as its interpretation of the word “timber.”

“The use of the word ‘timber’ in the bylaw was not intended to focus on a narrow category of trees that might be available for use in the construction of buildings or other structures,” Smith wrote. “The interpretation urged by Sexton would allow all scrub pine to be clear cut over the entire NSP District — which Sexton argues he has the right to do — solely because that type of tree may not be suitable for commercial use.” Such an interpretation would undermine the objectives of the National Seashore District, the judge said.

Judge Smith also agreed with the town’s building commissioner and zoning board that cutting down trees for additional parking and a driveway would be an expansion of the nonconforming use. He therefore supported the ZBA’s determination that a special permit is required before Sexton does any further clearing.

Judge Smith annulled a portion of the zoning board’s decision where it determined that Sexton’s cottage colony already has adequate parking and that his effort to create additional parking and a driveway is forbidden because it is incompatible with the National Seashore’s federal standards.

The zoning board was given only the task of reviewing the propriety of the building commissioner’s decision that a building permit and special permit were necessary before Sexton could cut more trees to expand parking. “Instead of limiting its ruling to those issues, the board jumped the gun and ruled that Sexton’s tree cutting is an improper extension of cottage colony use,” Smith said. The board also based its determination on the federal standards rather than local bylaws, which the judge called “a mistake of law.”

Neither the town’s nor Sexton’s attorneys responded to calls and emails seeking comment on the judgment. Sexton also did not respond to an email. Sharon Inger, who chairs the ZBA, said her panel had not yet been told about the judge’s ruling.

UNSETTLED

After a Cease-and-Desist Order, a Legal Battle Ensues

Truro’s effort to stop Martin’s use of Seashore site is going to court

By Christine Legere Mar 13, 2024

TRURO — The town’s building commissioner and zoning board of appeals have been consistent over the last year in their position that Robert Martin’s bulk sale of landscaping material from the property at 100 Route 6 is prohibited. It’s an opinion that Martin and his Orleans-based attorney, William Henchy, don’t share.

Robert Martin expanded and graded the Route 6 lot he rented from the Aikens for his landscaping business without permission in January 2023. He has removed his concrete bays, landscaping materials, and equipment. (Photo by Nancy Bloom)

It appeared that the question was settled on Nov. 6, however, when, after an appeal by Martin, the ZBA voted unanimously to uphold a cease-and-desist order issued by Building Commissioner Richard Stevens last spring.

The board ordered Martin to clear the property by Jan. 15. Martin complied and has cleared all materials from the lot — but that’s not the end of the story.

Martin leased the property from the Aiken family in January 2023 for his landscaping business, and by spring its footprint seemed to grow larger and flatter as concrete bays and piles of gravel appeared on the site. The property is in the National Seashore District, where commercial and industrial activities are limited to those that existed before the establishment of the Cape Cod National Seashore in 1961. Even those pre-existing businesses can’t be altered or expanded under federal rules. Towns in the Seashore have incorporated those rules in their local bylaws.

After the town was advised in a letter from then-Seashore Supt. Brian Carlstrom that Martin’s activities on the site were unlawful, Stevens issued his order in May 2023, saying Martin’s operation violated federal and local laws.

Following Martin’s appeal and the zoning board’s decision to uphold the order, however, the ZBA failed to file its decision with the town clerk within the 14-day deadline. Attorney Henchy seized the opportunity, saying the failure to file amounted to “constructive approval” of Martin’s appeal.

In Henchy’s opinion, that meant the cease-and-desist order restricting Martin’s operation was no longer in effect.

Henchy filed a notice of constructive approval with the town clerk on Nov. 21, one day after the board’s deadline had passed. On Nov. 22, the ZBA filed its decision, but that was two days too late, according to Henchy.

Dueling Court Cases

Both sides turned to the courts. On Dec. 6, Stevens filed a complaint in Barnstable Superior Court, seeking to have the constructive approval annulled and the zoning board’s Nov. 6 vote and decision affirmed.

Henchy filed a suit in state Land Court on Dec. 7, asking that the court to declare that Martin’s appeal was “constructively granted” and to annul the Nov. 6 decision of the zoning board.

Meanwhile, Stevens had issued a second cease-and-desist order against Martin on Nov. 29, which Henchy appealed to the zoning board.

On Feb. 26, the ZBA upheld Stevens’s Nov. 29 order following a heated exchange between Henchy and Barbara Carbone, Truro’s town planner and land use counsel.

Carbone repeatedly reminded ZBA members that the only matter before them was Martin’s appeal of the Nov. 29 order. The board was being asked to decide whether it upheld the order as of the time it was issued, Carbone said.

There should be no discussion of the “alleged” constructive approval, because that was pending in court, Carbone said.

Henchy bristled at Carbone’s use of “alleged,” saying the constructive approval was a fact.

He characterized Stevens’s second cease-and-desist order as an attempt at a “do-over.” Carbone disagreed, saying Henchy had questioned whether the zoning board had enforcement powers on the night of its original Nov. 6 vote.

Stevens issued the Nov. 29 cease-and-desist, Carbone said, “to make it clear the ZBA decision will be enforced.”

At Carbone’s suggestion, the board included all past records of the orders and appeals with its findings. Members then unanimously upheld the Nov. 29 cease-and-desist order.

“The board’s motion is such a transparent attempt to get another crack at the apple,” said Henchy, who made it clear he planned to appeal once again.

CEASE AND DESIST

ZBA Affirms Decision on Route 6 Landscape Business

Land owners say cleanup of 1998 fuel leak isn’t complete

By Christine Legere Nov 21, 2023

TRURO — Robert Martin has been given until Jan. 15 to remove the piles of loam, gravel, crushed shells, and other landscaping materials he has been selling in bulk from the lot he leased last January at 100 Route 6.

The stacks of firewood, which has been sold from the site at various times and in varying quantities since 1981, must also go.

The zoning board of appeals voted unanimously on Nov. 6 to uphold a cease-and-desist order served on Martin by the building commissioner in the spring because the landscaping operation violates both federal regulations and local zoning laws.

The property lies within the town’s National Seashore zoning district, where commercial and industrial activities are limited to those that existed before the establishment of the Cape Cod National Seashore in 1961. Such businesses are classified as pre-existing nonconforming uses that can’t be significantly altered or expanded under federal standards. The town incorporated those same stipulations into its local bylaws.

In 1961, a gas station, Jack’s Gas, was the only operation on the site. When the late Richard Aiken bought the property in 1978, he continued the gas station operation, and in 1981 he added the sale of firewood as an ancillary business. Neither the town nor officials at the National Seashore took any action for the next 20 years.

A fuel leak from an underground tank in 1998 put an end to the sale of gas there. Environmental regulators ordered the tanks removed and required the cleanup of the contaminated soil and groundwater. Aiken continued to sell wood and items such as T-shirts, soft drinks, and tourist maps until 2003, when a fire destroyed the station building.

After that, according to a letter then-Seashore Supt. Brian Carlstrom sent to the ZBA in July, Park Service officials told the Aikens that the sale of firewood didn’t predate the Park’s establishment. They made an exception, however, and did not object to the temporary firewood sales “provided proceeds were used to support the state government cost of cleanup,” Carlstrom wrote.

In his July letter, the former superintendent added that it appeared the temporary authorization for firewood sales was no longer needed to fund cleanup work because the Aikens no longer operated the site.

The Aiken family has leased the lot to a few different firewood sellers over the last several years. Richard Aiken died in 2021, and his son Andrew, who now owns the property with other family members, leased it to Robert Martin in January.

Martin expanded the sale of firewood and added a series of concrete bays filled with landscape materials, which he sold in bulk.

William Henchy, an attorney representing Martin and the Aiken family, frequently voiced objections during the board’s discussion. He disagreed with Barbara Carboni, Truro’s town planner and land use counsel, who told the board it could add stipulations such as a deadline for clearing the lot. Henchy argued that such action exceeded the panel’s authority.

Chair Christopher Lucy, along with the rest of the ZBA, believed a clear deadline was the only way to ensure the job would get done. “What we’ve seen for the past six or seven months is zero enforcement,” Lucy said, “so at this point we’re going to give some kind of direction about when it should happen.”

The board approved 36 “findings” to accompany its vote to support the building commissioner’s cease-and-desist order. They outline the reasons for its decision.

“Both Mr. Martin and the Aiken family are very disappointed in the board’s action,” said Henchy in a phone interview following the vote. “The Aikens believe the board acted mistakenly and has left them with nothing to do with the property except the cleanup.”

During the hearing, Aiken told the board that the fuel cleanup at the site has not yet been completed. His family is also responsible for continued monitoring of groundwater wells. He estimated that the remaining tasks could cost up to $100,000.

The ZBA’s vote supporting the cease-and-desist order leaves Martin with only one course of action if he chooses to continue the fight, which would be filing an appeal in court. Henchy said next steps have not been discussed.

IN THE SEASHORE

ZBA Set to Uphold Cease-and-Desist Order on Martin’s Rt. 6 Operation

If he’s shut down, landscaper says, he’ll create a worse ‘eyesore’

By Christine Legere Nov 1, 2023

TRURO — Although they put off a formal vote until Nov. 6, members of the zoning board of appeals made it clear at an Oct. 23 public hearing that they plan to uphold a cease-and-desist order issued last spring by the building commissioner on Robert Martin’s Route 6 landscaping operation because it violates federal regulations as well as local zoning laws.

Bobby Martin leveled the lot, cleared trees, and installed concrete bays to hold piles of mulch, loam, gravel, and crushed seashells at the Aiken property he rents on Route 6 for his landscape business. (Photo by Sam Pollak)

When the late Richard Aiken bought the property at 100 Route 6 from Diana Worthington in 1978, the summer resident, Episcopal minister, and classical singer also became a gas station owner. Jack’s Gas, which had been there since the 1930s, was within the boundaries of the Cape Cod National Seashore, but because it was there before the Park was established in 1961 it was allowed to stay.

A lot has happened on the property since then. A leak in an underground fuel tank in 1998 put an end to the gas station. State environmental officials ordered the tanks removed and required cleanup of the contaminated soil and groundwater. Aiken continued to sell items other than gas until 2003, when a fire destroyed the building.

After that, according to a letter former Seashore Supt. Brian Carlstrom sent to the ZBA in July, the Aikens were told the sale of firewood didn’t predate the Park’s establishment. But the Park Service made an exception and did not object to temporary firewood sales “provided proceeds were used to support the state government cost of cleanup,” Carlstrom wrote. The family went on to lease the lot to a few different firewood sellers over the years.

Aiken died in 2021. After his son, Andrew, who now owns the property, leased it to Robert Martin in January, the firewood stand grew larger.

In the spring, Martin leveled the lot, cleared some trees, and installed concrete bays to hold large piles of mulch, loam, gravel, and crushed seashells, which he added to his offerings.

Martin made those changes without getting the required permits. “I didn’t think what I was doing was a problem,” he said in a phone interview after the zoning board hearing.

In addition to upholding the cease-and-desist order, town planner and land use counselor Barbara Carboni told the board, it could order Martin to clear all the material off the lot by a specific date and direct the building commissioner to levy fines if Martin fails to comply.

Commercial and industrial uses that predated the establishment of the Seashore were allowed to continue as nonconforming uses — but only as long as they aren’t expanded or altered.

“I’m doing what’s aways been done there,” Martin told the Independent. “There’s just more volume.”

Martin had also claimed last spring that his business did not represent a change of use. But Carlstrom wrote to Truro officials in April that Martin’s operation was greatly expanded from past uses and violated federal zoning standards for the Seashore.

Building Commissioner Richard Stevens served Martin with a cease-and-desist order on May 3. Martin appealed the order to the zoning board, which held a two-hour hearing on the matter on Oct. 23.

While the board postponed its official vote to Nov. 6, it was clear that members agreed that Martin’s operation violates zoning laws. The delay allows Carboni to work on a list of findings to make the decision defensible if challenged in court. “If you don’t put in findings for why you uphold the building commissioner, you’re asking for it to be overturned,” she said.

“If they were so clear on what they wanted to do, why couldn’t they come up with findings?” Martin said.

Representing Martin and the Aiken family at the hearing, attorney William Henchy reviewed the history of the property.

“It’s our view that uses have been, since the beginning, retail,” said Henchy, noting that items like tourist maps, T-shirts, cold drinks, and frozen Milky Way bars were sold there for decades. “It was an early version of what are now convenience marts.”

Zoning board member Arthur Hultin disagreed. “To try to make a landscape company look like a general store is a big stretch,” he said.

Andrew Aiken, who lives in West Hartford, Conn., attended the online hearing. He said the sale of firewood on the lot began around 1980, with tree-length logs being cut and split onsite. Henchy provided photos of the site showing huge piles of stacked wood.

Aiken said the family has leased the property for the last several years to help cover the cost of the fuel cleanup, which is not yet complete. He estimated the remaining work will cost at least another $100,000.

Asked during the hearing whether he was running a wholesale business, Martin characterized it as retail, saying there were no18-wheelers coming in and out of the property. He conceded he got requests from time to time for five yards of a product, which he would load into his truck and deliver. Five yards is about seven tons of material.

Board member Darrell Shedd said he considered the sale of landscaping materials a violation under the town’s zoning. But he suggested the board allow Martin to continue selling firewood as a compromise.

Carboni cautioned the board that this wasn’t a matter calling for compromise. Its charge, she said, was to determine whether or not a use violated zoning, which caused Shedd to reconsider and decide selling wood was also a violation.

In her written analysis, Carboni said the original gas station was the principal use of the property, and other uses were accessory. “Without a principal use, there can’t be accessory use,” she wrote.

While members agreed that the storage and sale of the landscape materials violated zoning, a few continued to support the sale of firewood. The board must settle that issue and include it in its decision, the town planner said.

There were a few heated moments. Select board member Robert Weinstein accused Henchy of being disingenuous for using a photo he took of current conditions from far away, while the comparison photos from the past were close-ups. “The photo he presented was taken more than 100 yards away from the bins and the offending disruption behind the bins,” Weinstein said.

“I’ve practiced for 40 years,” Henchy replied. “I don’t think I’ve ever been called disingenuous.”

At the meeting, Martin argued that material in the zoning board’s packet said the only activity allowed in the Seashore District, other than those that were pre-existing, is the storage of equipment related to commercial fishing and food trucks.

“So, I could have 10 food trucks lined up there, and that would be permissible?” he asked.

On the phone, Martin said he will abide by the board’s decision but added that he then might do what the regulations allow, storing fishing traps, boat trailers, fishing nets, and other equipment along with some food trucks.

“If they thought it was an eyesore before,” Martin said, “they’d better close their eyes when they drive by.”

ZONING

ZBA Again Denies Permit for Wellfleet Contractor’s Yard

The board’s decision sends the case back to Land Court

By Christine Legere Oct 18, 2023

WELLFLEET — The well-groomed entryway to the GFM Enterprises contractor’s yard on Route 6 may score high for good looks, but the zoning board of appeals wasn’t interested in those aesthetics when it met Oct. 12 to decide whether the operation is allowed by the town’s bylaws.

Landscaping at the front the GFM contractor’s yard on Route 6 and Old Wharf Road in Wellfleet. (Photos by Elias Duncan)

The board unanimously voted that the use, which members categorized as heavy industrial, isn’t allowed there or anywhere else in Wellfleet.

The decision doesn’t settle the matter, however. It simply sends it back to state Land Court.

The debate between the ZBA and the property owners, Donna and Steve DiGiovanni of Truro, operating as Great White Realty, has been going on for nearly three years. The DiGiovannis bought the wooded wedge at the corner of Old Wharf Road in January 2021, cut down most of the trees, removed the topsoil, and began grading it without getting any permits.

Paul Fowler, the building inspector at the time, issued a cease-and-desist order. Great White and its attorney, Ben Zehnder, appealed the order. Meanwhile, GFM, a Dennis-based excavating company, leased the property from Great White and set up a satellite contractor’s yard there.

The town’s subsequent enforcement actions led to two more appeals, which have been merged with the initial one and are still pending.

The neighbors on Wixom and Old Wharf roads have vehemently opposed the operation but did not join the court case, believing their interests aligned with the town’s.

That changed in February when the neighbors’ attorney, David Reid, learned that the Wellfleet Select Board had reached a settlement with Great White and submitted it to the judge for review.

The neighbors complained they had been left out of the negotiations, which were conducted in closed sessions. And they opposed some of the concessions the town made, including a go-ahead for GFM to store sand, topsoil, gravel, and T-base on the site in large bins piled up to nine feet high.

The properties on Wixom Road are directly behind the GFM yard; a stockade fence separates the operation from the neighborhood.

In June, the judge sent the case back to the ZBA, which led to the board’s Oct. 12 hearing.

“The judge asked us how we would define a contractor’s yard,” chair Sharon Inger said. “We were asked, ‘Do we believe this is within the scope of how we define a contractor’s yard?’ ”

While a contractor’s yard was among permitted uses in the commercial and commercial 2 zones at the time it went in (town meeting made it a prohibited use in 2022), the operation would still have to comply with other sections of the zoning bylaw. One provision requires that noise, dust, vibration, and similar nuisances must be contained on the property.

Neighbors who live behind the GFM operation say they are exposed to noise, dust, and vibration.

“In the last two-and-a-half years, the zoning board, the building commissioner, and the select board have received hundreds of complaints from neighbors about the noise of the machinery and the operation on that site,” attorney Reid said. More than 60 more letters came in from neighbors after the Oct. 12 hearing was announced, Reid added.

The site hasn’t yet become fully operational, Reid said. “If you allow this, there’s going to be more people, more trucks and equipment, and tons more material that’s got to be uploaded from big trucks into these bins, and then scooped out of the bins and put back into dump trucks to be driven off to other sites,” he said.

Besides the six-foot stockade fence, screening would include Leyland cypresses planted about 15 feet apart. “It would take 10 to 12 years for those plantings to form a hedge barrier,” Reid said. “These so-called buffer protections are worthless.”

Laura Kozak said she wants to sell her Wixom Road house and move to an independent living complex. But she fears GFM’s operation will make her property hard to sell and reduce its value. “The noise level is unbearable,” she said.

Other neighbors told the board GFM is operating seven days a week and sometimes starts up before 6 a.m.

Attorney Zehnder argued the problem isn’t that the operation is offensive, “it’s that these residents live near a commercial zone. I understand people don’t like it,” he said. “The question becomes, ‘Where do you put it?’ ”

The answer might be nowhere. ZBA member Mick Lynch said the contractor’s yard was put into the bylaw’s table of uses in the 1970s to allow businesses like local contractors or landscapers in the commercial district. “The difficulty I have with this particular project is I believe it’s heavy industry, which isn’t allowed in town anywhere,” Lynch said.

The operation is “too extreme,” said ZBA member Wil Sullivan. “None of the complaints that the abutters have are going to be remedied by the draft agreement that was presented to the court. It just can’t be done. For that reason, I would suggest we just reaffirm our prior votes.”

The board voted unanimously to reaffirm its denial of permits for the operation. It then voted unanimously not to allow bulk storage on the site.

Following the hearing, Reid said the case will now return to court, where a date will be set to consider the neighbors’ motion to intervene.

Reid called the decision “one more strike” against Great White’s appeal. “I think it will be harder for them to succeed now,” he said.

PERMISSIONS

Neighbors Don’t Like Sound of Brewery’s Permit Request

A year-round hub with a new patio wants to bring entertainment outdoors

By Christine Legere Sep 13, 2023

PROVINCETOWN — The public hearing process on the Provincetown Brewing Company’s request for a special permit to offer outdoor entertainment has not yet begun, but letters of opposition are already flowing to the zoning board of appeals.

Brewery owner Christopher Hartley, along with his business partner and newly elected select board member Erik Borg, are looking to be able to provide outdoor entertainment seven days a week during business hours. “Any amplification will cease sharply at 10 p.m. Sunday-Thursday and 11 p.m. Friday/Saturday and will be played at a reasonable level of sound,” Hartley wrote on the application.

The brewery’s current license allows indoor entertainment but only if all doors and windows are closed during live performances. Musical acts are limited to three pieces, and amplification is prohibited.

“We plan to have an assortment of entertainment throughout the entire year to help attract a variety of clientele,” Hartley wrote.

In a phone interview this week, Borg said he can understand “why neighbors are expressing some fear of the unknown.” But he and Hartley invested a lot of money in the outdoor patio this past spring, he said, and “it’s important to be able to use it.”

The brewery is in the town center commercial zone, where outdoor entertainment requires a special permit. Neighbors complain that outdoor entertainment on the patio has been going on for the last two summers without a permit.

According to Borg, the brewery used the outdoor areas for some entertainment during Covid. “We’re looking to continue,” he said. On weekly trivia nights, the indoor event has been broadcast to a spillover crowd outside through speakers. The brewery has also run some special events outside to coincide with the town’s theme weeks, Borg said.

Standish Street resident John Tyler said amplification was the issue.

“Their Monday night trivia quiz is so loud we could answer the questions from inside the house with the windows shut,” Tyler wrote in his letter of opposition. Texts, emails, and one certified letter to the owners asking them to moderate the sound have gone unanswered, he added.

The owner of Provincetown Bike Rentals, located across from the brewery, complained that the music drowns out his own speaker inside his shop. “There are some days when there are no events at all,” wrote Mike Riley, “and the volume is still out of control.” Riley urged the ZBA to prohibit amplification.

Borg conceded that the brewery broadcasts music outside daily during its hours of operation.

The town’s nuisance bylaw prohibits loud noise “regardless of its nature, source or manner of production or reproduction” that is audible 50 feet or more from the point of origin.

Among the several Center Street neighbors to express their opposition was Robert Littlefield, who formerly served on the zoning board. Littlefield said the burden from the noise would be significant to those living nearby. “I asked around and found no neighborhood input was solicited for this application,” Littlefield wrote.

The owners of two nearby guesthouses also sent letters asking the ZBA to deny the special permit. The Sunset Inn, which has operated for 21 years, sits across the street from the Provincetown Brewing Company. Owners Adrian Padilla and Leonard Scaparro wrote that the brewery’s outdoor seating area is already wired with speakers that play music daily and broadcast live entertainment several times a week. “We have asked them to tone it down but have not received any cooperation,” they said.

According to Licensing Agent Linda Fiorella, a handful of businesses have licenses for outdoor entertainment, and some have limits on the hours. Among them are the Aqua Bar and the Brasswood Inn on Commercial Street, Mac’s Fish House on Shank Painter Road, and the Provincetown Business Guild, which organizes events. The Crown & Anchor is also allowed to offer entertainment outdoors.

A couple of letter writers suggested granting the brewery a special permit but only for one or two events per summer.

Borg said he hopes the brewery can come to some agreement with its neighbors. “We want to be good neighbors but continue to run a business, and entertainment on the patio is part of that,” he said. Live music performance will be confined to inside the brewery, he added.

“When it comes to volume, the last thing we want to do is become a nuisance,” Borg said.

The opening session of the zoning board’s hearing on the permit request is set for Oct. 5.

ZONING

Truro Planning Board Again Rejects Change in House-Size Limit

A proposal to eliminate special permit ‘loophole’ won’t be on warrant

By Sophie Mann-Shafir Aug 23, 2023

TRURO — Since 2017, Truro’s zoning bylaw has included a limit on the size of large houses. But a provision in the bylaw allows homes to exceed the limit with permission from the Zoning Board of Appeals. The ZBA has been asked for extra square footage eight times, and each time the request has been granted.

This track record does not sit well with some ZBA members — in particular, Darrell Shedd, who brought a citizen petition to town meeting in April that would have eliminated the option of requesting a special permit to exceed the bylaw’s limits by 1,000 square feet.

The select board supported Shedd’s bylaw amendment in the spring, but the planning board did not, and Shedd ultimately withdrew the article from consideration.

There will not be another version of that article at the upcoming special town meeting.

At the end of its statement rejecting Shedd’s proposal in the spring, the planning board said it would work on a new version of the change for the fall. But the board decided last month not to move forward with any changes to the house-size bylaw. The ZBA, however, will consider special permit criteria again at its Sept. 25 meeting, looking at examples of bylaws from other towns.

The house-size bylaw that passed in 2017 imposes a 3,600-square-foot maximum gross floor area for a house on a 0.775-acre lot. The limit rises to 3,668 square feet for houses on one-acre lots. An additional 300 square feet are permitted for each additional contiguous acre of land in the house lot.

The special permit provision allows houses to exceed that limit by up to 1,000 square feet.

According to Shedd, that amounts to a loophole that had slipped past many of the voters who enthusiastically approved the house-size limit at town meeting in 2017.

“The whole purpose of my submitting an article was that I was not aware until I became a member of the ZBA that there was this language in the bylaw,” he told the Independent.

When Shedd presented his article to the select board in the spring, he said that “we did not want to see mansionization in this town.” The select board supported the article with four votes in favor and one abstention.

Although the planning board agreed that the special permit loophole had eluded voters’ attention, it voted against the amendment before the April town meeting. In its comments, the board wrote: “Many of us did not realize that the article actually allowed owners to apply for a Special Permit for more space, up to 1,000 square feet. Since the passage of the article many homeowners have come to the ZBA for this space and been granted it. This article removes that option.”

The planning board worried about possible amendments to Shedd’s measure on the town meeting floor, however. “While the Board supports the intent of this article it may have the opposite effect if passed. Therefore, we do not support it,” the board wrote.

The planning board concluded its comments with a plan to collaborate with Shedd in revising the petition for the next town meeting. Shedd withdraw his article.

But in July, when the planning board was gearing up to submit zoning articles for the special town meeting this fall, it again decided not to proceed with Shedd’s proposal.

Chair Anne Greenbaum referred to the additional 1,000 square feet as a “safety valve” for the house-size limit.

Chuck Steinman, who worked with the planning board to draft the bylaw, was also vocally opposed to Shedd’s amendment.

“The language was carefully crafted to allow some flexibility but limit what the ZBA could give,” Steinman told the Independent this week.

He echoed Greenbaum’s concerns about bringing the matter to town meeting floor, which he said could backfire if town meeting voters expanded the 1,000-square-foot provision in the bylaw. “Obviously, if people are coming to town meeting to get additional square footage, there’s a demand for it,” he said.

At the ZBA meeting on Aug. 21, Shedd argued that the special permits are still a problem.

“It seems that the board is being asked more and more to skirt the limits of the zoning bylaws,” Shedd said. “If the ZBA strictly enforces the bylaws as they are written and to their intent, not all projects are going to be approved.”

“When do you stop, and where do you draw the line?” asked ZBA member Nancy Medoff.

“That’s why people are here before us: they’re asking us to kind of bend the law,” said ZBA chair Chris Lucy. “People hate it when they hear that, but they’re asking to bend the laws because not all the laws fit on every project,” he added.

Lucy said the central question is “essentially, are we comfortable on any of these projects, allowing people to do what they’re asking to do? That’s all it comes down to.”

Per the town’s zoning bylaw 30.8.C, in order for a special permit to be issued, it must be clear “that the proposed use is in the opinion of the Board in harmony with the general public good and intent of this bylaw.”

“By continuing to let people run roughshod,” Medoff said, “we make this board untenable.”

Shedd said that he still wants to eliminate the special permits. “I just don’t think it should exist,” he said. But he elected not to bring the proposal as a petitioned article on his own, citing the planning board’s lack of support.

Town Planner Barbara Carboni said she will bring examples of house-size bylaws from other towns to the ZBA’s next meeting on Sept. 25 to help the board consider alternative approaches.

Editor’s note: An earlier version of this article, published in print on Aug. 24, incorrectly referred to Chuck Steinman as a member of the Truro Planning Board. He worked with subcommittees of the board to draft the house-size limit but was not a member.

HABITATS

After 9 Years, 4 Habitat Houses Reach Final Wellfleet Review

And at Lawrence Hill, completion date is pushed back to 2026

By Christine Legere Jul 12, 2023

WELLFLEET — Habitat for Humanity of Cape Cod will ask the zoning board of appeals at its July 13 meeting to take the final step in its review of a plan to build four affordable houses off Old King’s Highway. The review process began nine years ago.

This request is not about the houses themselves but addresses the income limits that define who would be eligible to buy them. ZBA chair Sharon Inger said the potential adjustments to the comprehensive permit’s conditions were routine.

Habitat’s permit is for four houses: two 2-bedroom and two 3-bedroom ranches. The conditions currently call for all four homes, for the first-time sale, to go to people earning no more than 65 percent of area median income (AMI). Barnstable County’s AMI is $84,650 for a single-income household; 65 percent of that is $55,023.

Habitat is asking to restrict the first sale of two homes — one 2-bedroom and one 3-bedroom — to people who earn a bit less: no more than 60 percent of AMI ($50,790 for a single-income household). At the same time, Habitat is asking to adjust the limit upward for the first sale of the other two houses, to 80 percent ($67,700 for a single-income household).

All subsequent sales of the homes will be deed-restricted in perpetuity to buyers who earn at or below 80 percent of AMI.

The change, already approved by the town’s housing authority, would align the income eligibility limit for the Old King’s Highway project with other Habitat developments.

Habitat’s plan has been challenged in court three times. The first was in 2015, when abutters appealed a special permit from the planning board to build three houses on the site.

Instead of fighting, Habitat changed course. The nonprofit housing developer applied for a comprehensive permit under the state’s 40B statute, which allows zoning boards to approve affordable housing developments under flexible rules in towns where less than 10 percent of the housing is defined as affordable. Wellfleet has under 3 percent.

The ZBA unanimously approved a permit for Habitat’s new plan in 2016. But the same group of abutters sued again and prevailed, based on a technicality related to the board’s voting procedure.

Habitat returned to the board, requesting a comprehensive permit for a new plan with four houses instead of three. The houses would be served by a single 450-foot driveway off Old King’s Highway. The ZBA approved the comprehensive permit in July 2019, and abutters promptly filed another appeal, citing issues related to traffic, drainage, privacy, and the general character of the neighborhood. They also wanted the homes accessed from Old Long Pond Road rather than from Old King’s Highway.

The list of appellants included Martin and Felicia Magida, Jean Rubenstein, and Charles Merzbacher, who all lived on Old King’s Highway and had been among those who had filed the previous lawsuits.

A jury-waived trial before Barnstable Superior Court Judge Mark Gildea was held in April 2022, and Gildea affirmed the ZBA’s action late that fall.

Regarding the preference for access from Old Long Pond, Gildea wrote that the street was part of the same neighborhood as the Old King’s Highway homes. “It appears that the plaintiffs’ concerns are limited to their particular properties rather than the neighborhood as a whole,” he wrote. As for traffic, drainage, and neighborhood character, Gildea wrote that four additional houses would have a minimal impact. There was no appeal of Gildea’s decision.

According to Habitat’s resource development director, Tara Cronin, it will still be a few years before any of the families who ultimately get the homes move in. Infrastructure will go in starting this fall, and volunteer wall raisings will be held late in 2024 or early 2025, Cronin said.

“That was unfortunate that it took so long, but we’re happy that there will be four houses there in a couple of years,” said Habitat Executive Director Wendy Cullinan.

According to Wellfleet’s housing production plan, 40 of the town’s 1,550 year-round units were classified as affordable as of November 2022, putting the town just shy of 2.6 percent. It needs an additional 115 affordable units to reach the state’s 10-percent benchmark, according to the plan.

Wellfleet will get a major housing boost when the 46 units designed for 95 Lawrence Road are completed, but those units won’t be ready for occupancy until 2026. The project was delayed when Preservation of Affordable Housing (POAH), a partner in the development, did not get one of the state’s funding awards last winter. POAH will apply again during a mini-funding round in September.

Habitat for Humanity of Cape Cod also has a project pending in Truro at 181 Route 6, on the east side of the highway between the Pamet roads and Union Field Road, which won local approval but was successfully challenged in Superior Court by an abutter.

Habitat held a community forum last summer to get neighborhood reaction to a revised plan for three affordable houses on the 1.78-acre property and once again ran into opposition.

“We really haven’t had additional contact with the neighbors since then,” Cullinan said. Habitat is currently focused on budgets for several pending projects, she said, but will likely revisit plans for Truro this fall.

In Truro, where the supply of affordable housing is even lower than Wellfleet’s (2.29 percent as of December 2022), the 39 units of mixed-income apartments planned for the Cloverleaf on Highland Road also faced a prolonged court appeal.

That appeal ended with a settlement in February 2022. The units are expected to be ready for occupancy in December 2024.

MIGHTY NEIGHBORLY

ZBA Asks New Owners and Abutters to Compromise on Big House

A vote to reduce house size and visual impact is reversed

By Christine Legere Apr 26, 2023

EASTHAM — The zoning board of appeals spent more than two hours on April 6 considering an appeal filed by abutters opposed to the planning board’s recent approval of a plan to demolish a cottage on Boat Meadow Marsh and replace it with a house twice its size.

The ZBA voted to add two conditions to the planning board’s approval that would reduce the size of the house and screen the walkout basement from neighbors.

That decision didn’t last long, however, with Ben Zehnder, the attorney for the owners, arguing that the size reduction would kill the project.

In the end, the ZBA rescinded its two votes on conditions and gave the property owners and their neighbors a month in which to reach a compromise, with the discussion set to resume on May 4.

John Sheehan and Sara Zobel of New York and Mashpee got site plan approval from the planning board in December for a 4,355-square-foot house and 1,321-square-foot garage with an upstairs apartment to be built at 715 Bridge Road.

The approval came despite considerable pushback from neighbors, who argued the project was too large for the neighborhood. Andrea Hanson and Christopher Szwedo, who live directly behind the property at 15 Bayview Road, appealed the planning board’s approval on those grounds, saying the board had not fulfilled its charge to ensure the project blends in with the character of the area.

During the ZBA hearing, Szwedo played a five-minute clip from the planning board’s site plan discussion in which chair Daniel Coppelman said that real estate is dynamic and changes with the needs of the public. “They want taller ceilings and bigger windows,” Coppelman said. “You’re not going to keep 1920s cottages in a town forever.”

While Coppelman mentioned there were “a bunch of letters in opposition,” he said that reading them publicly would take too long. “I think the overriding fact here is it’s a single-family home in a single-family neighborhood,” he said.

Coppelman’s comments on the inevitability of large houses, said Szwedo, are “evidence of leaning toward a predetermined viewpoint.” The board failed to use the town’s bylaws regarding the size of the house and the character of a neighborhood to shape the project, he said.

“We’re not against them wanting to build the dream house they want,” Szwedo told the ZBA. “We just don’t want it to be this big.”

ZBA vice chair Robert Bruns agreed that the size of the house presented a problem. “This is an imposing structure from Bridge Road and from the marsh and not necessarily in harmony with the neighborhood,” he said. And while the proposal complied with setback rules, planning board chair Coppelman “missed shaping the project,” Bruns said.

Project architect Sibel Asantugrul argued that the town’s conservation commission had “shaped the project tremendously and the planning board shaped it as well.” The owners’ concessions, she said, included moving the house farther back on the lot and reducing the size of a deck off the garage. Asanatagrul said they had also reduced the overall square footage slightly.

“The picture being painted by her is inaccurate,” Szwedo objected.

In an appeal, the job of the ZBA isn’t to deny the planning board’s site plan approval, said Bruns, but to add conditions if the board decides they are needed.

Bruns proposed adding two conditions: reducing the living area of the two main floors by 10 percent, which he said shouldn’t change the house’s overall look but would reduce its massing somewhat, and requiring the owners to screen the walkout basement with plantings.

ZBA member Brian Ridgeway spoke against the size reduction. “Do we start to let abutters design houses?” Ridgeway asked. “I’m concerned about that.”

Bruns said it would be up to the applicants’ architects to do the designing.

In a formal vote, the board unanimously approved the screening requirement. Bruns’s motion to reduce the size of the house passed 3-2, with chair Joanne Verlinden, alternate member Jarod Carey, and Bruns in favor, and Ridgeway and member Robert Sheldon opposed.

Zehnder immediately protested. “It will literally kill the project,” he said. “I ask that you revote. We are going to have to go back to square one.”

Asked by Bruns if he thought the conditions would address their concerns, Szwedo answered, “We’d like to see the house smaller, but we’ll take this. We didn’t ask for the house to be destroyed, to throw a hand grenade on it. We just asked it to be reduced.”

Verlinden asked if the two sides would be willing to see whether they could work out a compromise if the case were continued for a month. Hanson and Szwedo said they would be. The owners reluctantly agreed: “I’m willing to have a conversation; I just want to know where it will end,” Zobel said.

To that, Bruns said, “We can’t ignore eight abutters coming forward not liking the project.”

Then, at Zehnder’s request, the board rescinded both of its earlier votes on conditions.

HOUSING

Wellfleet ZBA OKs Permit for 95 Lawrence Rd.

Developers see 46 rental units completed by late 2024

By Sophie Mann-Shafir Oct 5, 2022

WELLFLEET — The Zoning Board of Appeals signed off on a comprehensive permit on Sept. 22 for Long Pond Village, the 46-unit affordable housing development at 95 Lawrence Road that has been in the works for more than three years. The two nonprofit developers who are partnering to build and manage the project — Preservation of Affordable Housing (POAH) and the Community Development Partnership (CDP) — can now move ahead with its financing.

Plans for the site include a lower village building near the intersection with Long Pond Road, with 22 one- and two-bedroom flats, and an upper village across from the Wellfleet Elementary School, consisting of 24 one-, two-, and three-bedroom units in townhouses. The developers, working with a task force of local housing advocates and planners, applied for the permit under the state’s Chapter 40B, which allows for a streamlined approval process in communities where the subsidized affordable housing inventory is less than 10 percent of the total housing stock. The state currently lists Wellfleet at 2.5 percent.

Previous efforts to build affordable housing in Wellfleet have gotten bogged down for years in lawsuits filed by abutters. So far, at least, there have been few objections to Long Pond Village.

“This is the first time we’ve had one come before us that had no significant opposition,” said ZBA Chair Sharon Inger.

The board received several letters of support for the development, including a petition signed by the owners of many local businesses. The Cape Cod Commission also sent a letter of support, stating that “the proposal preserved natural space and open space and that it was congruent with community heritage and therefore … consistent with regional planning goals.”

As of Oct. 4, no appeals challenging the ZBA’s vote to approve the permit had been filed. The 20-day appeal window started officially on Sept. 30.

The select board and the developers are now negotiating an agreement governing the use of land, which is owned by the town, said Town Counsel Carolyn Murray. The agreement will specify that 75 percent of the units will be reserved for those earning no more than 60 percent of area median income (AMI). “The remaining units will be ‘community rental units’ intended to accommodate a range of household incomes,” the proposed text of the agreement reads.

All 46 units will count toward Wellfleet’s subsidized housing inventory, though 11 of them will not be specifically designated as affordable housing because they will be made available to renters earning more than 60 percent of AMI.

The lower village building will have three stories, which required a waiver of the zoning bylaw’s height restriction. Inger said that the plan for 95 Lawrence Road was “a bit of a stretch for Wellfleet” because of the need for this and other zoning waivers. “But they made the case for why going up was preferable to cutting down more trees,” Inger said.

Inger attributed the lack of opposition to the permit to the 95 Lawrence Road Task Force, which “was excellent in doing a lot of work to explain to people what it was and why we would need it.” She said the task force made listening to people’s concerns a priority and credited POAH with involving the neighbors in the logistics of the land agreement. “They met and did walk-throughs with the neighbors,” said Inger. “They tried very hard to answer everybody’s questions.”

Mick Lynch, vice chair of the ZBA, raised questions during the Sept. 22 meeting about how vulnerable members of the community — and those intimidated by the required paperwork — would get assistance with applying to live at Long Pond Village. Elaine McIlroy, chair of the Wellfleet Housing Authority, cited POAH’s “incredible outreach program and reputation of working with the community.” She added that the CDP will be providing part-time housing specialist services.

“As former chair of the 95 Lawrence Road Task Force, I just want to say how proud I am of Wellfleet, how I feel we are so lucky to have this partnership,” said McIlroy.

Now that the comprehensive permit has been approved, the developers will begin applying for state funding. Cory Fellows of POAH said during the Sept. 22 meeting that they hope to have funding secured by next spring so that construction can be underway by late 2023. If this timeline pans out, the units could be complete and leases available starting in late 2024, he said.

“This is exciting,” said Inger. “It’s a major step forward for Wellfleet because it’s so many units. We’ve been doing little tiny projects — but this one is amazing.”