HomeMy WebLinkAboutAtty. Creedon's Proposed Variance Findings
MEMORANDUM AND
PROPOSED VARIANCE FINDINGS
BRIAN M. BUNN AND 157 POPONESSETT ROAD
JENNIFER A. CREEDON COTUIT, MA 02653
Pursuant to G.L. c. 40A, §10, the applicant for the variance bears the burden of proving
as follows:
“. . . that owing to circumstances relating to the soil conditions, shape, or topography of
such land or structures and especially affecting such land or structures but not affecting
generally the zoning district in which it is located, a literal enforcement of the provisions
of the ordinance or by-law would involve substantial hardship, financial or otherwise, to
the petitioner or appellant, and that desirable relief may be granted without substantial
detriment to the public good and without nullifying or substantially derogating from the
intent or purpose of such ordinance or by-law. “
Barnstable Zoning Ordinance Section 240-126: Variance Provisions incorporates by
reference G.L. c. 40A, §10.
“[A] decision of the board of appeals granting a variance cannot stand unless the board
specifically finds that each statutory requirement has been met" (emphasis supplied).
Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462 (1969).
In support of their request pursuant to Section 240-126 of the Barnstable Zoning
Ordinance and M.G.L. c. 40A, §10 for a variance to the front and side yard set back
requirements of Section 240-14 (E.), the applicants propose the following as findings as
to each such requirement of the statute and ordinance in support of the grant of the
variance requested:
PROPOSED VARIANCE FINDINGS AS TO EACH OF THE VARIANCE REQUIREMENTS
REQUIREMENT ONE:
1. The applicants seek to enhance their property by adding a new accessory pool
house structure to be used as an amenity to their existing in-ground pool located in the
easterly corner of their lot located on the corner of Jackson Drive and Poponessett Road
in Cotuit.
2. There are circumstances relating to the soil conditions, shape, or topography of
applicants’ land or structures that especially affect such land or structures but that do
not affecting generally the zoning district in which it is located as follows.
3. The applicants purchased the property in 2010 with the pool located in its
current location.
4. In order to be utilized for its intended use, a pool house needs to be located in
close proximity to the existing in-ground pool.
5. Given the location of the pool on the lot, the front northeast corner of the
property is the only location available to site the proposed structure so as to be adjacent
to the pool.
6. There is a significant change in topographical grade held by a rectangular
retaining wall located immediately behind and to the south of the proposed location of
the pool house structure.
7. In addition, the existing in-ground pool represents either: an existing
topographical feature that prevents location of the proposed structure further back
from the front yard property line or an existing structure on the site, within the meaning
of the words “or structures” contained in the statute and the ordinance, that precludes
the applicants from siting the proposed structure further back off the front lot line.
8. In the case of Kairis vs. Board of Appeal of Cambridge, 337 Mass. 528 (1958), the
Court upheld the granting Zoning Board’s consideration of the existing buildings and
structures on the site as a factor that the Board properly could consider as the basis for
the grant of a variance.
9. The above are all conditions that uniquely affect the land and structures of the
applicants but not generally the district within which the same are located.
REQUIREMENT TWO:
10. Owing to the above unique conditions that affect the applicants’ land or
structures, literal enforcement of the provisions of the ordinance or by-law would
involve substantial hardship, financial or otherwise, to the petitioner or appellant as
follows.
11. A literal enforcement of the set back requirements of Section 240-14 (E.) would
involve substantial financial hardship to the applicants because it would require them to
relocate their in-ground pool and would require substantial re-grading and filling of the
site in the location of the change in topographical grade shown on the site plan as
“Planter”, which is bounded and retained in place by a three to four foot high built-in
6x6 retaining wall.
12. Other substantial hardship to applicants would result from a literal enforcement
of the set back provisions if the applicants were compelled, as a result of such
enforcement, to construct the proposed structure in a location on their property that
complies with the set back requirements but which is not adjacent to their pool because
it would render the structure unfit for its intended use due to the resulting lack of
requisite proximity to the applicants’ existing in-ground pool, which would preclude the
applicants from using it according to the purpose for which they intend to construct it.
REQUIREMENT THREE:
13. The applicants’ property is located along a section of Poponessett Road that has
no buildable lots across the road in closest proximity to the proposed location of the
proposed structure.
14. With regard to the proposed side yard non-conformity, the side wall of the
actual structure itself complies with the fifteen foot set back, it is only the low profile
protrusion of the bulkhead that encroaches into the required side yard set back.
15. The intent and purpose of zoning ordinances is to promote harmonious land use
and development according to an established plan of shared requirements for
construction of structures and the uses permitted to be made thereof to prevent
property owners from improving and/or using their properties in a way that would have
a significant negative impact on abutters and neighboring property owners.
16, The structure as proposed will have the most direct impact on 139 Poponessett
Road, which is the abutting property located immediately adjacent to the proposed
location of the structure.
17. The house at 139 Poponessett Road is set back well off the road to the rear of
that lot by as much as approximately two hundred feet.
18. The closer to the road that the applicants locate the proposed structure, the
further it will be from the house at 139 Poponessett Road, and the less impact it will
have thereon.
20. As such, desirable relief in the form of a variance from the front and side yard set
back requirements of Section 240-14 (E.) may be granted without substantial detriment
to the public good and without nullifying or substantially derogating from the intent or
purpose of such ordinance.
Respectfully submitted,
BRIAN M. BUNN AND JENNIFER A. CREEDON
By their attorney:
/s/Daniel M. Creedon, III
Daniel M. Creedon, III