The URL can be used to link to this page

Home My WebLink AboutSR-2023-014 Jaxtimer 1450 Ost West Barn Rd OST appeal of BC Decision Town of Barnstable Planning and Development Department Elizabeth Jenkins, Director Staff Report Appeal No. 2023-014 – Jaxtimer Appeal of Building Commissioners Decision Date: July 11, 2023 To: Zoning Board of Appeals From: Anna Brigham, Principal Planner Appellant: Ernest J. Jaxtimer 350 Main St, Osterville, MA Subject Property: 1450 Osterville/West Barnstable Road, Marstons Mills, MA Assessor's Map/Parcel: 127/007-001 and 036 Zoning: Residence F (RF) Filed: June 23, 2023 Hearing: July 26, 2023 Decision Due: October 1, 2023 Copy of Notice Ernest J. Jaxtimer has filed an Appeal of an Administrative Official’s Decision in accordance with Barnstable Zoning Ordinance Section 240-125 B.(1)(a) and M.G.L. Chapter 40A Section 8 and Section 15. The Petitioner seeks to overturn the Notice of Zoning Ordinance Violation and Order to Cease, Desist, and Abate Immediately from the Building Commissioner, dated May 26, 2023. Summary of violations determined by the Building Commissioner include Barnstable Zoning Ordinances Article II General Provisions Sections 240-7 A, 240-10 A; Article III District Regulations Sections 240-14 A (1); Article IX Site Plan Review Sections 240-100 A, 240-101 B, 240-103 B, 240- 103 C, 240-103 K, and 240-105 G. The subject properties are located at 1450 Osterville West Barnstable Road as shown on Assessor’s Map 127 as Parcel 007 001, and 1450 Osterville West Barnstable Road #A as shown on Assessor’s Map 127 as Parcel 036. Both properties are located in the Residence F (RF) Zoning District. Appeal This matter involves an appeal of the Notice of Zoning Ordinance Violation and Order to Cease and Desist and Abate immediately concerning the uses at 1450 Osterville/West Barnstable Road, Marstons Mills dated May 26, 2023. According to the Notice, the Building Commissioner received multiple complaints and later observed violations on site of the following Zoning Ordinance Sections: Article II General Provisions Sections: 240-7 A, 240-10 A Article III District Regulations Sections: 240-14 A (1) Article IX Site Plan Review Sections: 240-100 A, 240-101 B, 240-103 B, 240-103 C, 240-103 K, and 240-105 G The Building Commissioner determined for zoning purposes that the property owner’s claim that he is operating an agricultural use at the subject property is without any evidence to support it and instead he is operating a landscape contractor yard which has now expanded into a manufacturing and industrial use. In the Notice, the Building Commissioner writes a history of violations over time and determined the property is used as a contractor yard with processing plant, landscape materials storage, heavy equipment operations, firewood processing, and storage of firewood, loam, aggregate, mulch, shells, and boat storage in violation of the Zoning Ordinance. He states that between May 2017 and May 2023, no effort was made to stable horses, raise livestock, plant vegetables, fruit, ornamentals, or grow anything resembling an agricultural use in accordance with the requirements. Zoning Board of Appeals – Planning and Development Department Staff Report Appeal No. 2023-014 - Jaxtimer 2 The Appellant states that he has conducted primarily an agricultural use of the subject property and the adjoining lot at 1500 Osterville West Barnstable Road commencing in 2017 after receiving Site Plan approval for the same which agricultural use has included without limitation the growing of trees, flowers, plants, vegetables, and recently raising poultry which qualify for the Agricultural Use exemption under M.G.L. Chapter 40A Section 3 and the Town Ordinance Sections 240-8 as defined in Section 240-128. Background The parcel addressed as 1450 Osterville/West Barnstable Road Map 127 Parcel 007-001 contains 4.42 acres with a 26 x 36 foot farm storage building. The parcel addressed as 1450 Osterville/West Barnstable Road Map 127 Parcel 036 contains 1.1 acres with a detached barn for storage and an office. Section 240-8 Exempt uses. A. The following uses and structures are permitted in all zoning districts: (4) Agriculture, horticulture, viticulture, aquaculture and/or floriculture on a parcel of land five acres or less in size shall be permitted subject to the following requirements in residential districts: (a) Seasonal garden stands for the sale of seasonal fruits, flowers and vegetables shall be permitted, only for the sale of produce grown on the premises. (b) No person shall be employed on the premises. (c) No more than one temporary, on-premises sign may be erected, not to exceed two square feet, to be removed during the off season. Procedural Review This appeal was filed with the Town Clerk’s office and the Planning and Development Department, Zoning Board of Appeals Office on June 23, 2023. The Notice of Zoning Ordinance Request for Enforcement is dated May 26, 2023. Findings The Board shall make findings when either voting to uphold or overrule the Building Commissioner’s determination. It is the Board’s responsibility to determine if the Building Commissioner properly determined that the use does not violate the Zoning Ordinance. Should the Board wish to uphold the Building Commissioner’s decision to file a Notice of Zoning Ordinance Violation and Order to Cease, Desist and Abate, the Board should consider the following finding: 1. The Board affirms the Building Commissioner’s finding that the uses at 1450 Osterville West Barnstable Road, Marstons Mills are in violation of the Barnstable Zoning Ordinance and do not meet the Section 240-8 Agricultural Exemption. Should the Board wish to overrule the Building Commissioner’s Decision to file a Notice of Zoning Ordinance Violation and Order to Cease, Desist and Abate, below is a draft finding for the Board’s potential consideration. 1. The Board finds that uses at 1450 Osterville/West Barnstable Road, Marstons Mills comply with the Section 240-8 Agricultural Exemption. Procedural Information Zoning Board of Appeals – Planning and Development Department Staff Report Appeal No. 2023-014 - Jaxtimer 3 Upon making findings, the Board may choose to vote to:  Uphold the Building Commissioner’s determination; or  Overrule the Building Commissioner’s determination, A vote of 4 members of the Board is required to overrule the Building Commissioner’s decision. CC: Appellant (c/o Attorney Ford) Attachments: Appeal Google Earth Photo