Oak Bluffs ZBA says structure crossed the line

The ZBA told Mark Crossland his building is not in compliance and held off action on the White Brothers–Lynch property.

Mark Crossland (standing), shows board members Joe Re and Llewellyn Rogers a plan. Attorney Anthony Mazzeo (right) looks on. —Bill Chaisson

At their Thursday, Oct. 20, meeting, the Oak Bluffs Zoning Board of Appeals (ZBA) convinced Mark Crossland that he should withdraw his application for a variance and special permit which would have allowed for the relocation of an oversize nonconforming guest house on a conforming lot. The building was constructed more than 10 years ago and has since been improved without the necessary building permits.

The need to move the building arose after it was discovered that a small portion of the building sits on property owned by the abutting Meadow View Farms Association. Both parties are now in Land Court and Meadow View Farms supports the relocation.

Mr. Crossland’s attorney, Anthony Mazzeo argued that it would be a financial hardship for the family if they were not allowed to move the structure. He said that the building represented a habitable space in a town that needs it.

The Crosslands had negotiated a solution with Meadow View that involved moving the building, a garage with a presently unoccupied apartment over it, 13 and a half feet in from the property line. Mr. Mazzeo explained that it could not be moved to a conforming location — set back 50 feet from the property line — because of its present connection to the septic system.

The second, less favored option was to “chop off” a portion of the structure so that it no longer encroached on the abutting parcel. This, however, would leave the building right on the property line.

“The Land Court has been gracious with extensions,” said Mr. Mazzeo. “We would like to have a satisfying update for the Land Court judge.”

Board chairman Kris Chvatal noted that the original building permit for the structure had been for a non-habitable structure to be constructed 50 feet from the property line. “It was never signed off on,” Mr. Chvatal said, “because a habitable structure was built right on the property line.”

Mr. Chvatal said that the pertinent regulations for granting a variance were very difficult to meet because they were largely derived from the state level. “If this is ‘self-inflicted,’ then it doesn’t qualify for a variance,” he said.

“If we can’t do what we propose,” said Mr. Mazzeo, “then this stays in Land Court, which is a burden to both the Crosslands and to Meadow View.” The case is complicated by the fact that the Meadow View Farms Association is forbidden by a covenant to transfer any portion of its property; the Crosslands may not purchase part of the parcel to make the structure conforming.

Civil engineer and surveyor Doug Dowling spoke out against granting the variance and special permit. “It’s a three-bedroom apartment. Electrical and plumbing were installed without a permit. I’ve never heard of a hardship variance granted for a self-created hardship. Granting it would be unjust, because everything done was illegal. This would be a lousy precedent for this town.”

Neighbors Eugene Defelice and Marc Rivers countered Mr. Dowling’s opinion by testifying to the Crosslands’ uprightness and generosity. “If you could reach a solution that was agreeable to all,” said Mr. Rivers, “I’d support it.”

“You should reduce the size and move it to at least make it legal with respect to zoning,” board member Andrea Rogers said.

“You are going to to have to apply for a building permit,” Mr. Chvatal told Mr. Mazzeo. “We don’t have the state behind us [to grant a special permit and variance].”

Board member Joseph Re suggested that the ZBA could be lenient in this case.

“There’s a list, and this doesn’t meet anything on the list. Now he’s got to do what he originally said he was going to do,” Mr. Chvatal said of the Crosslands’ plans for the building.

Following a brief private discussion with his clients, Mr. Mazzeo announced that the Crosslands had chosen to withdraw their applications.

“That’s a good idea,” Mr. Chvatal said, “because if we voted on this, then you have would to wait two years before you could apply [for a building permit].”

White Brothers–Lynch

The matter of allowing a change of use from excavation and hauling to storing equipment and material used in a contracting business in a series of parcels along Pennsylvania Avenue in a residential district was not resolved. Mr. Chvatal said, after presentations by attorney Edward Kirk and comments from owner Gerry Lynch and some neighbors, that he would like to speak with the town’s counsel again before the board reached a decision.

In 1995, Mr. Lynch bought the White Brothers construction company, a family-owned construction company that began in 1927. The Pennsylvania Avenue site had been used infrequently until this past year.

Mr. Kirk’s primary argument in favor of the change of use was that the new activity would not be substantially more detrimental than the current use. He said Lynch would be discontinuing commercial activity in two parcels (21-78 and 21-79) at the northwest end of the site and allowing them to go to residential use, although he has no plans to develop them himself. The lots total 2.6 acres of the 5.6-acre site.

The entrance to the lot that served those parcels, which are closer to Alpine Avenue, will be closed. The entrance closer to County Road will be the only egress in use.

Mr. Kirk noted that Lynch had planted the berm between his site and residential areas that surround it, creating an effective screen for noise and dust. The nearby streets include Wachusett, Syracuse, Barling, and Alpine avenues.

The attorney predicted a significant reduction in the amount of truck traffic to the site now that construction at the Lagoon Bridge has been completed. He said that the change of use would produce no change in the quality of life in the neighborhood; there is already substantial nonresidential activity because of the presence of a transfer station and a salvage yard.

“I’ve been up there to look at this,” said Mr. Re. “The plantings and the fencing are an amazing improvement. I’m impressed by what the company has done to satisfy the neighbors.”

Board member Llewellyn Rogers inquired as to the relationship between Mr. Lynch and John Leite, who owns the adjacent salvage yard, the operations of which have spilled onto Mr. Lynch’s lot. “Mr. Lynch is a let-and-let-live kind of neighbor,” Mr. Kirk said.

He said that what had triggered the current round of applications was the escalation of activity at the site associated with lagoon pond bridge construction. Before that increase there had been no complaints from neighbors.

Two neighbors were present at the meeting to express their concerns, which include objections to noise and truck traffic, and the safety of neighborhood children because of the latter. One neighbor expressed worry about the nature of the materials that would be stored onsite.

Mr. Leite said that he felt Mr. Lynch had gone beyond what was required, in terms of mitigation, to be sensitive to his neighbors. “He’s a man of integrity,” said Mr. Leite. “What he says he’ll do, he’ll do. The improvement [at the site] has been 300 percent of what it was there. Except for during the bridge construction, they were never there late and never on weekends.”

Mr. Chvatal continued the hearing until Nov. 17.