~Planning Board Defers Vote on ZBA Recommendation for Lot 9
On October 25, 2017, the Duxbury Planning Board voted to defer the decision to the Zoning Board of Appeals regarding a recommendation on Lot 9. They requested that the Zoning Board of Appeals focus on one particular section of the zoning bylaws:
404.9 Special Permit for Use and Construction
The Board of Appeals may grant a special permit for the use and construction on land in the Wetlands Protection Overlay District despite the prohibition of Section 404.5 provided that:
a. The proposed use is allowed in the Residential Compatibility District or, if more restrictive, the zoning district in which the majority of the remainder of the parcel lies;
b. All other requirements of the Bylaw are met;
c. The Board makes a determination, following referral to the Conservation Commission, Board of Health, and Planning Board, that:
The location is not within the wetland as defined either under Section 40, chapter 131 M. G. L., or by soils type (very poorly drained, poorly drained or alluvial) as determined by the USDA Soils Conservation Service or on-site investigation by a qualified soil scientist, and Printed September 1, 2015 23
The site is not subject to inundation in a one-hundred year flood, and
The use will not endanger health or safety.
d. The Conservation Commission acting within the scope of its jurisdiction has approved such use and construction.
Does "all other requirements of the Bylaw are met" mean that a lot must have 40,000 square feet OUTSIDE of the Wetland Protection Overlay District BEFORE an applicant can apply for a Special Permit and build in a Wetland Protection Overlay District?
In the case of Lot 9, the lot has 81,344 square feet of upland. However, only 37,040 square feet is outside the WPOD. Adding ~3,000 square feet of the WPOD would make it a conforming lot. Should a Special Permit be granted to make the nonconforming lot a conforming lot by adding 3,000 square feet of the WPOD? Or should an applicant have the required 40,000 square feet for a lot before building in the WPOD?
The Zoning Board of Appeals will make this determination at the November 9, 2017 Public Hearing at 7:30 at Duxbury Town Hall.
