The zoning board of appeals said “no” this week to a Mashpee developer seeking permission to build a cluster subdivision on a long, narrow 15-acre parcel of land off Farmersville Road.
The proposal was before the zoning board on Tuesday, September 10, for a variance because under existing zoning bylaws, only three lots would be allowed on the parcel.
The unanimous decision came after a public hearing—which drew opposing comments from several neighbors who want the property preserved as open space—and board deliberations.
Board members questioned developer Ronald F. Gangemi about whether he had explored other options for the oddly shaped lot, such as creating multi-family units, or three large single-family houses on the acreage.
Mr. Gangemi said he had considered those options and also thought about offering it for sale as agricultural land. He decided, however, that an 11-lot cluster subdivision would be the most profitable for him, as well as the most environmentally friendly for the neighborhood.
“I don’t want to have to clear the property [of trees and animal habitats]. I was thinking this would be a friendly subdivision,” Mr. Gangemi said. “I don’t want to make a killing, but I don’t want to lose money either.”
The Mashpee developer said he wanted to build one- and two-story housing only on three or four acres of the parcel and set aside about 12 acres as conservation land.
Three of the neighbors testified that they were told, when they bought their adjoining properties in the mid-1990s, that the land behind their homes would never be developed. They described Mr. Gangemi’s parcel as one of the last remaining pockets of wilderness in the area.
The zoning board members said, during their deliberations, that Mr. Gangemi had not adequately demonstrated a hardship—the main criterion for granting a variance from the town’s zoning restrictions.
“There are other options besides going from three lots [the allowed maximum under town bylaws] to 11 and all could be profitable,” board chairman Christopher Neeven said. “This would be the largest variance I’ve seen since I’ve been on the board.”
Board vice chairman James J. Killion agreed.
“We can’t consider profitability. It’s not our purview,” he said.
Mr. Killion and other members reiterated that they did not believe the developer had truly demonstrated a sufficient hardship as defined under zoning regulations.
“If he bought the property knowing [its challenging configuration], he can’t suddenly have a hardship,” Mr. Killion said at an earlier ZBA meeting. “You will have to demonstrate how the hardship was created.”
Eliza Z. Cox, Mr. Gangemi’s attorney, argued Tuesday night that the courts have decided in favor of developers who purchased oddly shaped lots, were familiar with zoning restrictions and still pursued a variance.
“Case law is clear that purchasing a parcel with knowledge of applicable zoning limitations is not, by itself, a self-created hardship,” Ms. Cox said.
She cited a 2010 Taunton case, which the state Appeals Court found that “purchasing a nonconforming lot with actual knowledge of its nonconformity is not, standing alone, a sufficient basis upon which to deny zoning relief as a self-created hardship.”
Therefore, the landowner was entitled to seek zoning code relief, the court found.
Nevertheless, the Sandwich board turned down the request.
“If we can’t get past the hardship, we have to deny it,” Mr. Neeven said.
Several of the neighbors waiting outside for news of the zoning board’s decision reacted with cautious optimism.
“I’m happy they denied it, but I’m afraid of what comes next,” said neighbor Lisa Bates.
Ms. Cox could not be reached for comment on Wednesday. She has 20 days to appeal the decision to Barnstable Superior Court.