Hurricane season officially begins on June 1st. Now is the time to review your emergency preparedness.  Do you have a plan in place should a major storm threaten?

Visit the National Hurricane Center for ideas to prepare for the coming hurricane season.

The article also reminds me that it is time to get back to the Chapter 40R based zoning proposal for land adjacent to the Dennisport Village Center, a proposal which calls for the creation of a compact residential neighborhood on land currently used for industrial purposes.

Conover Commons, Redmond Washington, Ross Chapin Architects

Why talk about a campground in the Berkshires on Cape Cod?  Well, it serves as an example of what we have dodged  the past two seasons with Tropical Storms Ernie and Irene.  Our south side campgrounds are located on equally low lying flood prone lands.  Walker Island highlights the challenges we will face should we get more than a glancing blow.

As our camps slowly fill up over the coming weeks, everyone is urged to look around the properties, see what might be a problem should a storm hit, and try to make each property more storm resistant.  Obviously, cottages and RVs sitting in the flood zone are problematic, but many things can be tied or nailed down to reduce the risk of damage from wind or other storm impacts beyond that of flooding.

The legal issues related to the petition conflicting with two  sections of the State Zoning Act will be an important part of the deliberations:

MGL Chapter 40A

Section 4. Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.

Section 6. Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five….

Under MGL Chapter 40A Section 4, the Board found that the petitioned by-law would treat each property differently, violating the uniformity principles within zoning districts.  As discussed previously, Review of Proposed May 2012 Petition to Restrict The Size of Cottages in Cottage Colonies, the petitioned article would impact each property in the Seasonal Resort Community differently.

Under MGL Chapter 40A Section 6, the Board noted that the date, as used in the petition, September 5, 2010, would serve no “useful zoning purpose” and would effectively violate the grandfather protections provided for under Chapter 40A Section 6.  This is in stark contrast to the purpose of using the September 5, 2010 date in other sections of the Seasonal Resort Community By-law which sought to provide an “amnesty” date tied to the first posting of the Seasonal Resort Community Zoning By-law.  This amnesty date recognized that many changes had occurred on these properties since the properties were originally grandfathered in 1973 and established a new grandfather protection date by which future changes would be judged. The “useful zoning purpose” being providing zoning protections for improvements that might have been done improperly over the preceding 37 years.

In the discussions before the Economic Development Committee, Zoning By-law Study Committee and Board of Selectmen, concerns have been raised that the potential cottage community on the current Grindell’s property will not fit the “neighborhood.” Specifically the properties along Grindell Avenue and Shirley Avenue.

This begs the question, just what is the neighborhood?

Is it just the properties fronting on Old Wharf Road that were part of the land once subdivided out of the RV park property?

Or would it include the two adjacent properties on Old Wharf Road to the east of this old subdivision as they also abut the RV park?

Or, since the by-law considers the needs of all neighboring properties, would it also include the properties that abut the RV park along Longell Road and Old Wharf Road to the west as well?

Ultimately, if we look over all the neighboring properties we find an average existing building footprint of 1,058 sf.  And a zoning allowed average footprint (15% lot coverage)  of 1,406 sf.  Each structure, if complying with lot coverage, could be 2 1/2 stories and 35 feet tall, ultimately meaning an average living area on the neighboring properties of about 3,500 sf.

The future cottages in the Seasonal Resort Community District, on the other hand, are limited to a maximum of 900 sf for the cottage itself and a 240 sf covered porch, or a 1,140 sf allowed footprint.  These cottages are limited to 1 1/2 stories and 25 feet in height, guaranteeing that they are generally shorter than what can occur around them.  The half story limitation, above the 900 sf cottage footprint also limits overall area to  1,350 sf.  The total living area would, ultimately be less than the average ground floor area for the properties neighboring the Grindell’s Ocean View Park property.

While Site Plan Review by the Planning Board for the potential redevelopment of the Grindell’s RV Park will look at site design and building location in context to the neighboring properties, the zoning has already taken the setting into consideration, placing significant restrictions in place to ensure that reinvestment in these properties do not overwhelm neighboring properties.

First, you need to understand the boundaries of each area. The Zoning Districts:

Old Chatham Road

Old Wharf Road - Grindell's Ocean View Park

Camper's Haven, Chase's Ocean Grove, Village at Nantucket Sound and Salt Air Village

These need to be contrasted with the Land Use Vision Map area illustrated below:

Land Use Vision Map Cultural Preservation Area

The bottom two maps illustrate the same land area, as the land use vision map only identified the largest contiguous tract of cottage colony land. The property that has been singled out in the recent discussions is not included in this area. However, even if it were, there is no conflict between the Seasonal Resort Community By-law and this designation.

First, one must understand the concept of “culture” and “cultural preservation.”  Culture can be defined in many ways, while some might direct you to structures to illustrate the culture of an area, most definitions focus on the people and define culture as “as the learned and shared behavior of a community of interacting human beings.” Structures might illustrate, but do not define a culture.

During the crafting of the Seasonal Resort Community By-law the purpose statement was discussed at length during one of the early meetings. Those present, mostly cottage and RV owners from the Chase’s Ocean Grove, Camper’s Haven and Village at Nantucket Sound properties were quite vocal. They quite firmly stated they were not interested in having the purpose statement declare historic preservation. They stated that such a designation would place more restrictions on reinvestment than the non-conforming status they already had to deal with. After much discussion it became abundantly clear that they were interested in preserving a way of life, not structures. This led to the following purpose statement:

To provide sites for seasonal cottage and recreational vehicle oriented resorts with special attention to preserving and enhancing the existing land uses, vegetation, visual landscape, and amenities for future generations, thereby retaining the historic “way of life” and character of the area while considering the needs of neighboring properties.

Retaining a “way of life” and “cultural preservation” go hand in hand, without dictating what structures represent that culture.  In the 2006-2010 Massachusetts State Historic Preservation Plan, the state identified a need for creating “guidelines for future registration” of a variety of Cape properties, from tourist camps, motels and motor courts to cottage communities.  No such guidelines have been forthcoming, and in the 2011-2015 Massachusetts State Historic Preservation Plan this has been completely dropped. Why was it dropped? They certainly have not provided any guidance on how they would preserve cottage communities which stretch from the Cape to the Berkshires. Perhaps, as they looked at these properties, they too learned that it is not about the structures but the people and way of life.

The Seasonal Resort Community By-law and the Land Use Vision Map seeks to preserve the culture and way of life in these areas.  The By-law and Vision Map also recognize that significant challenges exist to this culture if the structures are not allowed or encouraged to be brought up to flood, fire and building codes.

What was particularly evident was the signs that people were putting time and money back into their cottages, something that was not evident back in the unsettled times of the winter of 2009-2010.

Had a chance to visit with one of the cottage owners as well and chat about the Seasonal Resort Community Zoning. He was upfront, that he liked much of the zoning but had some issues as well. I asked about his issues and he told me that he had considered going up with a higher roof for more light and air, no loft, just more light. He found that to make such a change he would have had to make changes to bring the cottage up to current building and life safety codes. This would have made a short money project much more expensive. As we talked it became evident that he understood that these costs were necessary to protect his investment.

He liked the idea that there were controls over spacing of cottages, admitting that these properties had been somewhat like the wild west in years past. He pointed to evident, incremental changes that occurred over the years to the cottages in his little cluster, changes that made it difficult to even walk between buildings. He knew that he was in an area that would never be able to expand its footprint, but held out hope that someday, with longer term leases, he will be able to raise his roof a few feet, re-wire the cottage and meet all the other Building and Fire Code standards.

All this brought me back to many of our discussions in 2010 while crafting the Seasonal Resort Community By-law. During that summer there was much give and take and there were many constants. As I pointed out in an earlier post, I had started with a rather small building footprint. It was through numerous discussions that the potential size changed. Cottage owners saw the need from two perspectives, first they desired more elbow room and second, due to the need to meet modern codes (building, flood and fire), they needed a comfortable living arrangement to make it worth the added expense ($100,000 for the owner I talked to).

For the town Building, Flood and Fire Code compliance was vital.  These properties have been identified in the town’s Multi-Hazard  Mitigation Plan (draft document in 2010) as being both flood and urban wildfire risk areas (Humarock Beach on a larger scale). A comfortable size, that could encourage Fire, Flood and Building Code compliance was important to us as well.

The ability to enlarge structures was traded off with strict building separation requirements, restrictions on the number of stories (2 1/2 reduced to 1 1/2 stories), and new height restrictions (35 feet reduced to 25 feet). Yes, we agreed that cottages could become bigger, but we also ensured they would not match that of many adjacent homes which tower over these properties.

The by-law, combined with state actions, should also promote environmental improvements. Waste water improvements are being pushed by the state. But as individuals take advantage of their lawful zoning status other, not so evident contamination issues can also be cleaned up.

This is just one RV that has not been registered for 30 years.

The final Seasonal Resort Community By-law, adopted overwhelmingly by Town Meeting in November 2010 was the end result of an unheard of effort by town officials, year-round and seasonal residents and property owners to plan and design a feasible approach to providing a future for the seasonal character of these properties while providing incentives for the owners and summer residents to address environmental and public safety problems associated with these properties.

Seasonal Structure – A residential, commercial, or industrial structure that lacks one or more of the basic amenities or utilities required for year-round occupancy or use such as a permanent heating system, insulation, and/or year-round usable plumbing.

This definition, raised at the March 20th Board of Selectmen’s Meeting led to inquiries to both the Commission and Dennis Building Commissioner Brian Florence.

The Commission told me that this definition was a carry-0ver from an old regional plan and had no relationship to any current Regional Policy Plan policy or Regional Development Review Threshold.  In fact, Commission staff stated the definition should be removed.  The Commission also reinforced their position that they treat recreational vehicle parks as residential land uses, exactly the same as cottage colonies, or single family subdivisions.

A final point made by the Commission relates to and is consistent with the opinion provided below by our own Building Commissioner. The Commission cannot set regional policy that violates or requires towns to violate other state laws, hence the need to remove this superfluous and outdated definition.

As to the Building Code requirements, I will let Brian’s response to me address this issue:

After reviewing your email, the Cape Cod Commission’s definition and the building code I submit the following for your use and assistance:

780 CMR is the Massachusetts State Building Code. The building code is divided into two distinct documents. The first is the International Code Council’s 2009 International Building Code (IBC) as amended which is the code that is used for all structures in Massachusetts that are not one or two-family dwellings.

The second is the 2009 International Residential Code (IRC) as amended which regulates one and two-family dwellings and their accessory structures. For purposes of this review we will use the 2009 IRC as amended.

780 CMR, Chapter 2 – Definitions:

Dwelling: Any building that contains one or two dwelling units used, intended, or designed to be built, used, rented, leased, let or hired out to be occupied, or that are occupied for living purposes.

Dwelling Unit: A single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.

Please note that there is no definition in 780 CMR for a Seasonal Structure, Seasonal Dwelling or Cottage. For building code purposes, if you are to construct a structure that is not a commercial structure as defined in the IBC, then you are constructing a dwelling unit or more specifically a Single or Two-family dwelling.

This begs the question; what is a seasonal dwelling? Considering that there is no building code definition the obvious assumption would be that a seasonal dwelling is a dwelling that can only be used seasonally due to regulatory or practical purposes. For instance, in the Town of Dennis our zoning by-law defines seasonal use and for zoning (regulatory) purposes the basis for a seasonal use is defined by the time of year. There is no such regulatory (time) limitation in the building code.

For practical purposes then, a structure without heat or insulation as defined in the Cape Cod Commission’s definition could certainly be considered seasonal. However, such a structure would have to predate the building code because such a structure could not be constructed in Massachusetts and be in compliance with 780 CMR as it is written currently.

780 CMR, Chapter 3 Section R303.8 – Required Heating states:

When the winter design temperature in Table R301.2(1) is below 60F, every dwelling unit shall be provided with heating facilities capable of maintaining a minimum room temperature of 68F at a point 3 feet above the floor and 2 feet from exterior walls in all habitable rooms at the design temperature. The installation of one or more portable heaters shall not be used to achieve compliance with this section.

Table R301.2(1) : This table defers to Appendix D of the International Plumbing Code which puts the Town of Dennis below 60F winter design temperature.

Based on 780 CMR, I have determined that a structure which provides complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation, must also provide heating facilities and insulation in this region. Such structures for practical purposes cannot be considered anything other than year round housing unless they are otherwise regulated outside of 780 CMR.

With that being said, there are structures which exist now that pre-date 780 CMR and do not contain heating facilities, insulation nor which provide complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. These structures are permitted to remain as they are unless/until they are altered to a degree that triggers provisions which would require that the structure meet the current standards as outlined above.

To put it simply, zoning has established that cottages in the Seasonal Resort Community and in cottage colonies in general in other parts of town are seasonal.  Not the Cape Cod Commission. Not the Building Code.

Re-investment above a particular level will trigger the need to comply with Building, Fire and Flood requirements. Compliance with these codes improve public safety.  In crafting the Seasonal Resort Community By-law nearly everyone at the table recognized that, to bring structures on these properties up to current codes, we needed to make reinvestment attractive as it sure will be expensive.

My original version March 19, 2010:

B. Seasonal Cottages may have a footprint of up to 400 sf exclusive of the area identified in subsection F below.

E. Any seasonal cottage that exceeds 600 square feet shall meet the density requirements for a dwelling unit located in the same district.

March 23, 2010 after initial feedback (green text represents my changes, blue text is changes suggested by others):

B. Seasonal Cottages may have a footprint of up to 400 sf exclusive of the area identified in subsection F below. (We need to really think about this one. Using the Assessor’s data I find the following breakdown for cottage sizes 187 are under 400 sf, 234 are between 400 sf and 600 sf, and 64 are above 600 sf. The largest cottage is listed as 882 sf. There are also a mix of single family homes located within the boundaries of the cottage colonies. Perhaps, 600 sf would be an appropriate footprint, with 900 sf allowance for the loft. Let’s mull this over.)

E. Any seasonal cottage that exceeds 600 square feet shall meet the density requirements for a dwelling unit located in the same district. (900 sf?)

On March 27, 2010 the following exchange took place:

E. Any seasonal cottage that exceeds 600 square feet shall meet the density requirements for a dwelling unit located in the same district. (900 sf?) ( Not sure what this means ? )

E. Any seasonal cottage that exceeds 600 square feet shall meet the density requirements for a dwelling unit located in the same district. (900 sf?) ( Not sure what this means ? Are we saying that no new cottage may exceed 600 sq ft, or that no existing cottage may be enlarged to exceed 600 sq ft ? If an existing cottage already exceeds 600 sq ft, can the complex still be eligible for a special permit ? )

These comments came from the general public.  On June 16, 2010, after our first meeting and numerous exchanges including significant input from the Ocean Grove Homeowner’s Association, found here and here, the following changes were made:

B. Seasonal Cottages may have a footprint of up to (400 deleted) 900 sf exclusive of the area identified in subsection F below. (We need to really think about this one. Using the Assessor’s data I find the following breakdown for cottage sizes 187 are under 400 sf, 234 are between 400 sf and 600 sf, and 64 are above 600 sf. The largest cottage is listed as 882 sf. There are also a mix of single family homes located within the boundaries of the cottage colonies. Perhaps, 600 sf would be an appropriate footprint, with 900 sf allowance for the loft. Let’s mull this over.)

E. Any seasonal cottage that exceeds (600 square feet deleted) the total floor ara allowed pursuant to subsections B and C, above, shall meet the density requirements for a dwelling unit located in the same district. (900 sf?) ( Not sure what this means ? Are we saying that no new cottage may exceed 600 sq ft, or that no existing cottage may be enlarged to exceed 600 sq ft ? If an existing cottage already exceeds 600 sq ft, can the complex still be eligible for a special permit ? )

Then on June 22, 2010 the following change was made:

(B. Deleted) A. Seasonal Cottages may have a footprint of up to 900 sf exclusive of the area identified in subsection (F Deleted) C below. (We need to really think about this one. Using the Assessor’s data I find the following breakdown for cottage sizes 187 are under 400 sf, 234 are between 400 sf and 600 sf, and 64 are above 600 sf. The largest cottage is listed as 882 sf. There are also a mix of single family homes located within the boundaries of the cottage colonies. Perhaps, 600 sf would be an appropriate footprint, with 900 sf allowance for the loft. Let’s mull this over. Deleted)

(E. Any seasonal cottage that exceeds (600 square feet deleted) the total floor ara allowed pursuant to subsections B and C, above, shall meet the density requirements for a dwelling unit located in the same district. (900 sf?) ( Not sure what this means ? Are we saying that no new cottage may exceed 600 sq ft, or that no existing cottage may be enlarged to exceed 600 sq ft ? If an existing cottage already exceeds 600 sq ft, can the complex still be eligible for a special permit ? ) Deleted)

Even though the section related to cottages continued to be modified after June 22, 2010 there were no more changes made to the size of cottages after this date.

To review all the blog discussions regarding cottage size during the summer of 2010 and beyond click here: Cottage Size.