What constitutes new construction versus reconstruction was debated during a heated Mattapoisett ZBA hearing on Thursday, January 19. And in the end, it was the Webster’s dictionary that helped settle the matter.
Applicant Cedar Realty Trust submitted a request for a Special Permit to demolish and rebuild a house on a non-conforming, L-shaped lot at 7 Cedar Road. The new plan would relocate the home from a narrow 25-foot strip of the property to a wider portion of the lot.
“It is placed sensitively, and a well placed home for the neighborhood. [This has] created a much better situation,” said Atty. Elizabeth Kunz on behalf of the applicants. The proposed home would have a 20 percent lot coverage.
Although the project had six neighbors write letters in support of the plan, two neighbors and their lawyer opposed it.
Attorney Ralph Copeland argued that because the applicants are entirely rebuilding a new home – they should have to file a Variance, not a Special Permit. A Variance is required for new construction, while a Special Permit allows reconstruction on a non-conforming lot.
“The issue is it doesn’t comply with the zoning bylaws. I don’t see how you can consider a complete teardown a reconstruction. They are not proposing a reconstruction,” Atty. Copeland said. “The abutters have a right to insist on conventional setbacks. You are duty bound to enforce the law.”
The attorney added that the newly proposed house would sit six feet from the back property line, while the bylaws require a 25-foot setback.
Applicant Greta Fox, however, pointed out that the new house “would improve non-conformities” because the current structure has a zero setback on the back line.
“I’m just confused, we are improving every single setback. Right now we are on 5 Bay Road. How can it be better to be on then road than be six feet from it?” she said.
Engineer David Davignon said the opposition really stemmed from the potential of the new home to block the water view for the opposing neighbors. Three years ago, Atty. Copeland represented an applicant that did the same thing as Cedar Realty Trust was proposing to do at the hearing, the engineer added.
“We are doing what they did three years ago and now they are complaining about it,” Mr. Davignon said. “We are pushing [the home] away from their property line. The real issue here is the view, and that’s not under the [ZBA] purview.”
Building Inspector Andrew Bobola agreed, and pulled out the Webster dictionary to read the definition of “reconstruction” – which is basically rebuilding a home, regardless of whether the same design or materials are used.
He also said that 25 similar cases last year functioned identically to the Cedar Realty Trust’s application – and that he has allowed Special Permits for reconstruction on non-conforming lots for 25 years.
ZBA board member Mary Anne Brogan, however, remained skeptical. “I’m troubled by definition of reconstruction as opposed to construction,” she said.
In the end, the board approved the Special Permit, 4 to 1, with Ms. Brogan in opposition.
The board also approved a Special Permit for Virginia Gaffey of 27 Silver Shell Ave., who sought an addition for her home that would improve the handicap accessibility of the bathroom and other rooms. The project had the support of two physicians for a family member needing the upgrade to accommodate her wheelchair.
Karen Hoikala, however, spoke out against the application – arguing that the expansion would block the ocean breeze to her rental units on Channel Street. She also voiced concern how the increased footprint would affect drainage, and said traffic safety hazards exist due to the “personal effects on the property.”
“It seems impossible to build this type of structure without infringing on neighbor and town property,” she said. Also, she remarked that the new construction “must be more than 50 percent of value of the property” which is against Special Permitting rules.
The board, however, disagreed with Ms. Hoikala and said that the need for the expansion trumps her concerns.
“I think she really needs that addition, “said board member Susan Akin. Another board member commented that the rental units could be equipped with fans and an air conditioner to make up for blocked ocean breezes.
Building Inspector Andrew Bobola said the small size of the house leaves “no alternatives” for the family in meeting their needs.
The board approved the Special Permit with a condition that Ms. Gaffey remove her fence to improve airflow.
In other business:
• The board unanimously approved a Special Permit for Michael and Paula Ward of 11 Upland Way for an application to construct a family room, master bedroom and garage at their dwelling.
• The board gave the green light to applicant Nicole Demakis, who sought a Special Permit to construct a two-story addition and build a garage at 30 Pearl Street.
• The board unanimously approved a Special Permit application for Harry and Lisa Segalas to construct a two-story addition that will not meet the required setbacks at 9 Bay Road.
• The board okayed a Special Permit application from Mark and Janice Brockman to allow deck enhancements at their house on 14 Cove Street.
By Laura Fedak Pedulli