Westport News

The Zoning Board of Appeals hereby submits for filing in your office the following record of its proceeding and decision on the petition of William & Nancy McDonald (owner/applicants) for a variance on land located at 1344 Main Road.

RECORD OF PROCEEDING AND DECISION

Pursuant to a Notice of Public Hearing that was duly published in the Westport Shorelines on November 16, 2006 and November 23, 2006 and December 28, 2006 and January 4, 2007 and posted on the Town Hall Bulletin Board and mailed to owners, petitioners, attorney on file, abutters, owners of land directly opposite on any public or private street or way, abutters to the abutters within three hundred feet of the property line of the applicants; also notified were Town of Westport Planning Board, Town of Westport Building Department, Town of Dartmouth Planning Board and the City of Fall River Planning Department.  A public hearing was held on Wednesday, November 16, 2006 at the Westport Town Hall, 816 Main Road, Westport, MA on the above petition for a Variance to demolish existing building housing seven one-bedroom units and replace units with one-bedroom units, owner will then convey all eleven units to a condominium Trust, along with the existing single family home.  All buildings were constructed prior to Zoning Article 7.0 and does not obviate grandfather rights of owner to modify existing units; the plan as submitted complies with Article 7.8 – no increase in non-conformity shall occur.  Applicable Zoning By-law Articles 7.0, 7.5, 1.1, 1.0 thru 2.7, 3.0, 3.1. 15.0  thru 15.11.  The property is located at 1344 Main Road; known as Assessor’s Map 56, Lot 10-10A on deed recorded in the Bristol County (S.D.) Registry of Deeds in Book 1988, Page 1210.

December 6, 2006
The hearing was opened at 7:27 p.m. with Chairman Harrison reading the Public Hearing Notice and Abutters List aloud.  Other members serving were Gerald Coutinho, Christopher Graham, Kendal Tripp and Glenn Mauk.  Also present: Attorney Kathleen O’Donnell, Town Counsel and
Mr. & Mrs. McDonald (owner/applicants) and Attorney Brian Corey (representing the applicants).

Attorney Corey stated that his clients currently own the eleven one-bedroom units and occupy the main house on this property.  The property was purchased in 1985 and operates as an apartment complex; this is a commercially zoned property.  Attorney Corey’s clients no longer want to be landlords.  All structures on the property were prior to zoning.  Sitec Engineering has been employed to create a state-of-the-art septic system. The seven-unit structure will be demolished and the creation of duplex units and a triplex unit will be completed.  The same configuration of the property will be used.  There will be no increase in use of the property.  The property is licensed as a motel but it has not been used as such for 20 years; they have been used as apartments since 1985.  The new remodeled property will be under a Condominium Trust. There will be the same amount of units so as not to tax the water supply.  This will remain as one parcel.  These are pre-existing, grandfathered uses.  The cottages will remain but reconfigured and all will remain as one-bedroom units.  The property size is approximately three acres.  The flavor of the neighborhood will remain as residential/agricultural.  We are proposing the same footprint size.  The eleven units will become four duplexes and one triplex, all colonial styled.  All units will be leveled and replaced.
Mr. Mauk questioned that the application states seven detached units but the plan is showing differently.
Mr. McNally, Building Inspector said that the actual size of the property is 2.35 acres.  Mr. McNally said that the issue is that the bylaw does not allow multi-family use and this is pre-zoning; one residence is allowed on the property but this proposal is for twelve units.
Mr. Corey said that it would be eleven units plus the owner’s home.  Mr. Corey said that the existing well has been checked and it is being allowed for use.
Attorney O’Donnell stated that the application and what is being requested are two different things.  Attorney O’Donnell stated that the application is for an Administrative Appeal, it should be a Variance.
Attorney Corey said there is no intention to have any of the rental buildings remain on the property as they are.  The intention is to demolish the seven one-bedroom units and reconfigure them into two duplexes and a triplex. As for the cottages, they will be demolished and put back as duplexes.  The cottages must be moved for the new septic system to be installed.  The proposal will be keeping the same density and it will remain as an eleven-unit property.
Attorney O’Donnell said that they would be increasing the non-conformity and the units will be larger in square footage; the only grandfathering is if the units remain where they are.
Attorney Corey stated that they were proposing a larger setback with the new plan.  As it is now, the property has year round rentals, they are fully applianced and have an upstairs and downstairs.  This is one big lot similar to the Aberdeen situation.  The McDonald’s have control of the parcel.  The Board needs to look at this from an Intensity Regulations point instead of a variance.
Mr. Mauk disagreed that this was any different from Aberdeen.
Attorney Corey stated that his clients were proposing to take an unsightly building and create something that will improve the neighborhood without creating anything greater than what is already there.
Mr. Coutinho asked Attorney O’Donnell if they could go forward to do what they are proposing on this lot because they are grandfathered.
Attorney O’Donnell said that they are grandfathered but only if the buildings remain where they are. The applicant’s proposal requires a variance but the applicant has applied for an Administrative Appeal.  The Board can allow the applicant to reapply and the hearing be re-advertised as a request for a Variance.

After further discussion, it was agreed that the applicant would reapply and the hearing would be re-advertised as an application for a variance with the client paying for the re-advertisement.
Motion made by Mr. Coutinho to continue this matter to January 17, 2007 at 7:00 p.m. for the purpose of re-advertising as a variance request and to get additional information and to seek legal counsel.  Second by Mr. Graham.  The Board Voted Unanimously in Favor.

January 17, 2007
Chairman Harrison opened the re-advertised hearing for a variance at 7:20 p.m. with reading the Public Hearing Notice and Abutters List aloud.  Members present were Donna Lambert, Christopher Graham, Kendal Tripp and Gerald Coutinho.  Also present were Attorney Brian Corey, representing the McDonald’s.  
Attorney Corey stated that this property consists of 2.35 acres, the structures on the property were prior to 1957.  The property has a main building with a variety of rental units.  The McDonalds’ have owned the property since the 1980’s.  Currently, there are four stand-alone cabins and a main building consisting of seven one-bedroom units.  This property has a motel license and can be subdivided into lots.  A cost analysis to refurbish the structures proved not to be cost effective.  The new plan being proposing would have 1 triplex and 4 single buildings.  Attorney Corey stated that Zoning sections 4.1, 4.2 and 4.3 apply to this.  The units will each be 1,100 sq.ft. and will meet all setback requirements.  This new proposed plan is a substantial improvement to what is there now.  Attorney Corey stated that the applicants are meeting the criteria for a variance due to the topography and shape of the property.  This would be a strong hardship for the McDonald’s financially if they could not do this project and also, the Town would lose by not getting a better plan.  The McDonald’s want to rebuild what is there, but with a different configuration.  No license will be needed, such as the motel license they currently have, which can be returned back to the Town.  This project is not a detriment to the area or the neighborhood.  The lot has already been perc tested and testing for water supply is complete. There are no wetland areas on the property.  The driveway is to remain gravel.  The main rental building consists of two levels with each unit at 550 sq.ft.  The affected property that is existing is 7,690 sq.ft. and the proposed will be 12,100 sq.ft.  Attorney Corey stated that non-conforming can be made larger as long as it is not detrimental to the area.  
Mr. McNally, Building Inspector stated that the motel was built in 1958, according to the Assessor’s Records.
Mr. Paul Costa, 1338 Main Road, stated that his concerns were the setbacks, septic and wetlands.
Mr. McDonald stated that there are now five buildings but with the new plan there will be four duplexes and one triplex.  They will be recessed off the street and the buildings will be brand new and appealing to everyone.  The buildings will have a colonial motif and will be single-bedroom units.
Attorney Corey stated that the applicant would have to go to the Conservation Commission to file an RDA and to the Board of Health to file plans for a septic system repair, due to the flow not being changed.
Mr. Coutinho asked if the four cottages were rented year round.
Attorney Corey stated yes.
Mr. Coutinho asked if the intent was for all the property to be listed under the Condominium Trust with all the units being sold except for one, which will be used by the family.  Mr. Coutinho questioned how affordable could it be for the people who are presently renting.
Attorney Corey stated that currently the rents are above affordable range; the cottages are $800 per month and the other units are $650 per month.  Anything above $680 per month is considered above affordable rent.
Mr. McNally stated that this project would not have to meet “Inclusionary or Phased Development” because it is not a subdivision.
Attorney Corey stated that his clients may agree to a deed restriction on one unit for affordable housing.  Attorney Corey stated that his clients do not want to be in the motel business anymore.
Mr. Graham questioned if the new plan showed dedicated parking space such as the old plan.
Attorney Corey stated that the parking spaces will go from 113 sq.ft. to 105 sq.ft.; with each unit having a full basement.  To keep the natural topography of the property, units 1 and 2 will have a gradual change from 132’ to 126’ and units 3 and 4 will have a 6’ drop as shown on the plan.
Mr. David Sunderland, 1360 Main Road stated that his concern was the structures toward the back of the property and being 14’ from the property line.  Mr. Sunderland said that the setbacks would cause units 5 and 6 to be near his house reducing his privacy.
Mr. Coutinho stated that town bylaws allow 6’ from the property.
Attorney Corey said Units 5 and 6 could be moved north and west and still maintain a 25’ setback with excess.  The garages for the units will be under the building towards the rear.  Units 8, 9, 10, and 11 can be moved an additional 10’ to the south giving a 38’ setback, possibly a 40’ setback.  The gravel way can be shifted south.
Attorney Corey said that if the Board would like a treed buffer, that would not be a problem; units 4 and 5 could also be moved.  Attorney Corey said that his clients would maximize the setbacks.
Mr. Robert Dolan, 1368 Main Road said that his house is setback from Main Road and his bedroom faces the proposed buildings. Mr. Dolan said that everything presently has low key lighting; he is afraid that there will be more lighting and lower income people will not be able to live there.
Attorney Corey said the light issue will be addressed by lattice that will be placed on the back of the units to make for indirect lighting.  The closest area to the closest structure is about 150’.
Mr. Coutinho asked when the kitchens were put into the units.
Attorney Corey stated that they have always been efficiency units, back to the late ‘80’s and ‘90’s during renovations.
Mr. Costa said another concern of his was expansion. Mr. Costa stated that he grew up at 1404 Main Road and it was his uncle who built the McDonald’s house and three cabins; over time, it has expanded.  If changes are allowed for expansion again, where will it stop.  Mr. Costa stated that roughly in 1958, was when the buildings were built.
Attorney Corey said that the building could be moved another 7’ away from Mr. Costa’s property.  The best use would be to forego the commercial use and the motel license and convert this property back to residential with colonial style homes.
Mr. Dolan asked in consideration of the septic and well, will shifting the buildings change the septic system.
Attorney Corey said that a Title V shows any repairs that are needed.  The system presently in place can be repaired.  The system will remain the same size system with no expansion.  The Board of Health Agent and engineers stated that as long as the number of structures remain the same, the system can be repaired.
Mr. Coutinho stated that a deed restriction could require that the units remain as one bedroom only.
Attorney Corey stated that one bedroom units with two full-time residents per unit with no age restriction would be agreeable.
Mr. Coutinho stated that he would like to have reaction from the Board regarding Town Counsel’s opinion.
Mr. Tripp stated that in reading Town Counsel’s last page, the Board can approve of this proposal under a variance if it meets the three criteria.
Mr. Coutinho said that a variance was a possibility.  If the applicant had come forward with this proposal without existing buildings, Mr. Coutinho felt that the board could not see any possibility of granting.  Mr. Coutinho didn’t think however, that the Board could not look at the other part of Attorney O’Donnell’s opinion.
Attorney Corey said this project is more beneficial than a commercial hotel.  This proposal is far below in regards to lot coverage; we are less than 10 percent for the total coverage allowed.
Mr. Coutinho said that he would like more information in regards to the proposal, the information should include building dimensions, building views and elevations but, he would not want the applicant to have to go to this expense if it does not look like it would not be approved.  
Attorney Corey stated that he could provide more information to include buffers, setbacks, restrictions including one unit as affordable, lighting issues and parking.  Also, the applicant will provide elevations, designs, decks on the back or side of the buildings depending where the building is located and also, the required measurements.
Mr. Dolan asked if the plan would show driveways and parking area.
Mr. Coutinho said that it would and it should also show any existing stone walls.
Motion made by Mr. Coutinho to conduct an onsite of the property at 1344 Main Road on Saturday, January 20, 2007 at 9:00 a.m.  Second by Mr. Graham.  The Board Voted Unanimously in Favor.

9:30 p.m.
Motion made by Mr. Coutinho to continue this hearing to Wednesday, February 7, 2007 at 7:15 p.m.  Second by Mr. Tripp.  The Board Voted Unanimously in Favor.

January 20, 2007
The onsite meeting was called to order at 9:00 a.m.
Zoning Board of Appeals members present for the onsite at 1344 Main Road were Clayton Harrison, Gerald Coutinho, Kendal Tripp and Donna Lambert.  The purpose of this meeting was to get an onsite view of the property for the application submitted.
During the onsite, confirmation was made as to where the conservation land was located; addressed were the concerns of a neighbor to the south of the property regarding the distance from his house to the proposed Units 5 and 6; and what the lot size was of the proposed site.  It was agreed that a treed buffer would be required should the application be approved.  At the next meeting the Board would like presented the revised plan, structure design, over view of existing layout and proposed layout.  Noted was that the southerly abutter is requesting thicket be left for a buffer.

9:45 a.m.
Motion made by Mr. Coutinho to adjourn the Zoning Board of Appeals onsite visit.  Second by Ms. Lambert.  The Board Voted Unanimously in Favor.

February 7, 2007
The hearing was called to order at 7:15 p.m.  Members present were Clayton Harrison, Gerald Coutinho, Kendal Tripp, Christopher Graham and Donna Lambert.  Also present were Glenn Mauk, alternate member and Attorney Brian Corey.
Attorney Corey stated that the architectural elevations, treed buffer and lower lighting which were mentioned at the onsite were not completed in time for this hearing and he respectfully requests a continuance for his clients.

7:20 p.m.
Motion made by Mr. Coutinho to continue this hearing to Wednesday, March 7, 2007 at 7:00 p.m. Second by Ms. Lambert.  The Board Voted Unanimously in Favor.

March 7, 2007
The hearing was called to order at 7:15 p.m.  Members present were Clayton Harrison, Kendal Tripp, Gerald Coutinho and Christopher Graham.  Also present were Glenn Mauk, alternate member and Attorney Brian Corey.
Chairman Harrison stated one member of the Board was absent from tonight’s hearing.  It would be Attorney Corey’s decision as to whether he would like to go forward with the four members or agree to a continuance to a date and time certain with a full board.
Attorney Corey stated that his client would prefer a continuance to a time when there will be a full board present.

7:20 p.m.
Motion made by Mr. Coutinho to continue this hearing to Wednesday, April 4, 2007 at 7:00 p.m. due to a member of the Board being unavailable due to unforeseen circumstances.  Second by Mr. Graham.  The Board Voted Unanimously in Favor.

April 4, 2007
The hearing was called to order 7:00 p.m. Members present were Clayton Harrison, Gerald Coutinho, Kendal Tripp, Christopher Graham and Donna Lambert.  Also present were Glenn Mauk, alternate member, Attorney Brian Corey and Mr. & Mrs. McDonald.
Abutters present were Paul Costa and David Sunderland.
Chairman Harrison gave a review of this matter.  Mr. Harrison stated that originally the applicant applied for an Administrative Appeal but upon review from Town Counsel, the applicant should have applied for a variance.  The applicant did apply for a variance and the hearing was opened.  An onsite of the property has been conducted and revised updated plans have been submitted to the Board.  Tonight, at this hearing, the plans shall be reviewed and comments from the abutters will be taken.
Attorney Corey then reviewed the new submitted plans which included the moving of the buildings; and a new sewerage disposal system.  Attorney Corey stated that most of the units can’t have basements due to ledge being present; each of the units will have 1,040 sq.ft. floor plan.  The units will be New England style cape homes in order to fit the character of the neighborhood.  Units 5 and 6 are away from the back property.  
Mr. Harrison asked Attorney Corey if one of the units will be listed as affordable.
Attorney Corey said Mr. Jim Sabra, engineer, has inquired with the State regarding the criteria and $180,000.00 would be the price range with Unit #10 being designated as affordable.
Mr. David Sunderland asked how the property changed from seasonal to year round rentals.
Attorney Corey stated that this property has been utilized in one shape or form over the years, currently, it is zoned commercial and the units have been used as apartments for a very long time.  The units will not house any more people than the present number. There will be no boats, motorcycles or recreational vehicles stored on the property.  This project is a step up for the area.  The property must be brought up to code, that is why a new septic system is being installed. This project will not be more detrimental to the area than what is already existing.
Mr. Coutinho said that according to the old card system used by the Board of Assessors’ back in 1958 and 1959, there were no buildings on this property and the units appeared on the Assessor’s cards in 1960.
Attorney Corey said that he checked with the Building Inspector and his records show that in 1957 the buildings were there.  Attorney Corey has discussed this with the Building Inspector and according to Town Counsel, a variance is what should be sought for this property.
At the time, the McDonald’s purchased the property there were seven units and the addition was a barn.  The new septic system is being designed for eleven bedrooms.  The deed would restrict the units to two full-time residents and guests would be restricted to 30 days only.
Mr. McDonald stated he was in business for 10 years before Mr. Sunderland moved next door.  Mr. McDonald said that his intention is to upgrade the property; he could have easily had a campground but he respected his neighborhood.
Attorney Corey said that this proposal was the best plan attempted for aesthetics, low range lighting and positive impact on the area.  The current configuration is much better.
Mr. Harrison then referred the Board members to the opinion of Legal Counsel dated January 11, 2007 regarding making a decision on this matter.
Attorney Corey said Town Counsel stated that to proceed on this matter, a variance would have to be applied for.  Attorney Corey said that variance has been applied for and his clients have met the criteria for a variance.  Attorney Corey said his clients could go forward and condominimize the current units but would rather go forward under the conditions of a variance.
Mr. Paul Costa asked what would happen to the McDonald’s home.
Attorney Corey stated the home would not change, just the rental units.
Mr. Coutinho said that under a variance, a hardship needed to exist.
Attorney Corey said the cost to renovate the units in place would be substantially more than replacing them with new units.
Mr. Coutinho said Attorney Corey has mentioned right along that to tear down the units would be more cost effective, but the Board has no evidence to that effect.
Mr. Sabra, engineer, stated that to tear down and rebuild at the current location would roughly cost $100.00 per foot, that is for new units and relocating them.  While it would cost $150.00 per foot just to renovate the current units, due to the fact that new fire codes must be met and the new codes call for more than what is there.  There is also the potential for loss of units due to new walls being required.  For the seven unit building which is approximately 4,000 sq.ft.,  renovations would be approximately $200,000.00 more plus loss of a unit, if using the same footprint, the units would be too narrow.
Attorney Corey said his client is not trying to increase an eyesore and are not seeking any other relief.  To renovate, they would lose a unit and be facing additional costs due to upgrades while constructing new, according to present code would be less costly.
Mr. Coutinho stated the Board was no longer dealing with non-conformity.  Mr. Coutinho then asked if it was economical to do this configuration at the existing square footage.
Attorney Corey stated no.  It would cost $65.00 to $82.00 per sq.ft. if it were built modular, instead of the $100.00 per sq.ft. wood construction.  The proposed project is 12,100 sq.ft.  The units have 1,040 sq.ft. living area, which is the intended living area in the condo documents. This does not include the deck or porch or loft or basement.  Each unit will have a 715 sq.ft. loft.
Ms. Lambert stated that the loft does not have any privacy door and windows do not constitute a bedroom.
Attorney Corey said the loft’s maximum ceiling height is 7’ to 7’4” in the center peak area of the roof.
Mr. Tripp said that at any time, anyone could put a bed anywhere, whether it be in the kitchen or living room.  As long as the Zoning Board of Appeals does their job, it will be up to the individual.
Attorney Corey said a preliminary design was completed with the Board of Health regarding septic and they would only be allowed to have one-bedroom units for a total of eleven bedrooms for this project.  People self-regulate all the time; people living on this property will complain if there is abuse of the rules.
Mr. Harrison stated this project is finally in the site plan process stage and this Board needs to see if all of the conditions of a variance are being met.

Motion made by Mr. Graham to close the hearing at 8:12 p.m.  Second by Mr. Coutinho.  The Board Voted Unanimously in Favor.

After discussion by the Board members, the following decision and conditions were rendered.

Motion made by Mr. Coutinho to approve the variance request. The Board finds that due to the configuration and shape of the existing structures and their positions on the land, it would be a substantial financial hardship for the petitioners to rehabilitate the structures to conform to current building codes protecting the health, safety and welfare of inhabitants and this approval shall not substantially derogate from the spirit and intent of the zoning bylaws.  This approval is for the plans and proposals submitted, except as revised by the following conditions and restrictions:
1) The proposed loft areas of each unit shall remain as unheated space.
2) There will be no door on the proposed office/den area.
3) Basements are to be eliminated from all units, however, crawl spaces are not to exceed four feet in height, will be allowed.
4) A vegetated evergreen buffer is to be maintained on the northern and southern boundaries as indicated on the plans.
5) As indicated by the applicant, the Condominium Documents will restrict all units to one bedroom with no more than two permanent residents.
6) The habitable area of any unit is not to exceed 1,040 sq.ft.
7) Any material changes to the approved decision would require Zoning Board of Appeals review and approval.
8) All dormers on the rear of the structures will be eliminated.
9) All decks and porches shall remain open.
10)  Lighting shall be low intensity and directed downward and away from abutting properties.
11) The Condominium Documents shall show that no campers, motor homes or boats shall be allowed storage on the property.
12) The applicant will forfeit and return to the Town of Westport, all licenses related to the operation of a motel.
13) There shall be no commercial activity on the parcel, including the main house.
14) There is to be no in-law or accessory apartment or other additions on any structures on the property.
15) A revised set of plans, which comply with this decision must be submitted to the Zoning Board of Appeals prior to the commencement of any construction.
16) A set of Condominium Documents must be submitted for filing with the variance.
      Second by Mr. Graham.  The Board Voted Unanimously in Favor.

Motion made by Mr. Graham to adjourn the Zoning Board of Appeals meeting at 10:05 p.m.  Second by Mr. Tripp.  The Board Voted Unanimously in Favor.

Adjournment.

Mr. Harrison advised the applicants that there is a twenty-day appeal period once the decision of the Zoning Board of Appeals is filed with the Town Clerk.  On the twenty-first day, the applicant must have a copy of this decision certified by the Town Clerk and it must be recorded at the Registry of Deeds (S.D.).

The Board notes that any and all other relief, not specifically granted, is hereby denied because it was not pursued during the public hearing and, therefore, the burden of proof was not satisfied.

Any person aggrieved by a decision of the Zoning Board of Appeals may appeal to the Superior Court Department in which the land concerned is situated or to the Land Court Department or to the division of the District Court Department within whose jurisdiction the land is situated by bringing an action within twenty (20) days after the decision has been filed in the office of the Town Clerk.  Notice of the action with a copy of the complaint shall be given to such Town Clerk as to be received within such twenty (20) days in accordance with M.G.L.  Chapter 40A, Section 17.

Upon expiration of twenty (20) days from the date of this decision, without an appeal filed for the dismissal or denial of an unsuccessful appeal, it shall be the responsibility of the Petitioners to obtain the signature of the Town Clerk to the certification and to record this decision and the certification of the Town Clerk in the Bristol County (S.D.) Registry of Deeds.

If the rights authorized by a variance are not exercised within one year of the date of granting such a variance, they shall lapse and may be re-established only after notice and a new hearing pursuant to Chapter 40A, Section 10.

UNDER MASSACHUSETTS GENERAL LAWS, THIS DECISION AND NOTICE OF GRANTING OF A VARIANCE SHALL HAVE NO LEGAL EFFECT UNTIL IT IS RECORDED IN SAID REGISTRY OF DEEDS.