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HomeMy Public PortalAboutZBA Meeting Packet 12/14/21 Town of Brewster Zoning Board of Appeals 2198 Main St., Brewster, MA 02631 brewplan@brewster-ma.gov (508) 896-3701 MEETING AGENDA Remote Participation Only December 14, 2021 at 7:00 PM This meeting will be conducted by remote participation pursuant to Chapter 20 of the Acts of 2021,. No in-person meeting attendance will be permitted. If the Town is unable to live broadcast this meeting, a record of the proceedings will be provided on the Town website as soon as possible. The meeting may be viewed by: Live broadcast (Brewster Government TV Channel 18), Livestream (livestream.brewster- ma.gov), or Video recording (tv.brewster-ma.gov). Meetings may be joined by: 1. Phone: Call (929) 436-2866 or (301) 715-8592. Zoom Meeting ID: 880 7666 8068 and Passcode 047258 To request to speak: Press *9 and wait to be recognized. 2. Zoom Webinar: https://us02web.zoom.us/j/88076668068?pwd=b3lXWnMwM2tybTk4SzlKMk5vT3NTUT09 enter Passcode 047258 To request to speak: Tap Zoom “Raise Hand” button or type “Chat” comment with your name and address, then wait to be recognized. Zoning Board Brian Harrison Chair Arthur Stewart Vice Chair Jeff Carter Patricia Eggers Jeannie Kampas Bruce MacGregor Senior Department Assistant Ellen Murphy 1. Call to Order 2. Declaration of a Quorum 3. Meeting Participation Statement 4. Approval of Meeting Minutes 5. Continued Applications: #19-37 Applicant: 19 Muskrat Lane LLC. (Represented by Attorney Benjamin Zehnder), 19 Muskrat Lane, MAP103 LOT 9, in the RM zoning district. The applicant seeks an Appeal of the Building Commissioners decision that a boat storage shed, kayak rack and roll out boardwalk are not permissible uses on the property in the RM zoning district under MGL 40A § 8 & 15, and Brewster Zoning Bylaw §179 6-D(4). #21-23 Applicant: Sean and Ellen Darcy, (Represented by Attorney David M. Banash) 61 Consodine Road, Map 66, Lot 5 in the RM zoning district. The applicants seek an Appeal of the Building Commissioner’s determination in accordance with MGL Chapter 40A, Section 8 and 14, that a shed on the property transverses the property line. 6. Matters Not Reasonable Anticipated by the Chair 7. Next Meeting: January 14, 2021 8. Adjournment Date Posted: Date Revised: Received by Town Clerk: 11/16/2021 Page 1 of 3 TOWN OF BREWSTER ZONING BOARD OF APPEALS MEETING MINUTES Tuesday, November 9th, 2021, at 7PM Virtual Meeting Brian Harrison, Chairman, convened the Brewster Zoning Board of Appeals via remote participation with members: Art Stewart, Jeannie Kampas, Patricia Eggers and Bruce MacGregor. Jeff Carter was absent. A quorum was determined. Also present: Applicants: Attorney Benjamin Zehnder, John O’Reilly, Attorney David Banash, Attorney John Kanaga, Karyn Beedy and Ellen Murphy (Department Assistant). The Chair read the Recording or Taping Notification: This meeting will be conducted by remote participation pursuant to Governor Baker’s March 2020 orders suspending certain Open Meeting Law provisions and imposing limits on public gatherings. No in-person meeting attendance will be permitted. If the Town is unable to live broadcast this meeting, a record of the proceedings will be provided on the Town website as soon as possible. The Town has established specific email addresses for each board and committee so the public can submit comments either before or during the meeting. To submit public comment or questions to the Zoning Board of Appeals, please email: zbameeting@brewster-ma.gov. Review and Approval of October 12th meeting minutes Brian asked the Board if there were any changes to the minutes. Art suggested the wording for ZBA case # 21-22 be revised stating that Jeannie Kampas was present for the original discussion, but in October she was absent and Art heard the case. The case was continued, and the Board voted for the continuance unanimously. A motion was made by Pat to approve the October 12th, meeting minutes as revised, Bruce second the motion, a vote was taken: Brian, Bruce, Art, and Pat approved the minutes unanimously. Continued Applications: Application Review of ZBA #21-22, Applicant: Benjamin E. Zehnder, 178 Bonnie Doone Cartway. Members present and voting: Brian Harrison, Jeannie Kampas, Art Stewart, Pat Eggers, and Bruce MacGregor. Attorney Ben Zehnder and site engineer John O’Reilly addressed the Board. Attorney Zehnder provided an update of the activities since the meeting last month. He informed the Board that an analysis of surrounding homes was submitted with the meeting materials. He also indicated that discussions were initiated between his client, John O’Reilly, himself, and the Ten Lots Association. He referenced the conditions agreed upon by his client and the Ten Lots Association. He confirmed with the Board that the conditions were submitted to the Board. There were 22 conditions, which 21 have been agreed upon. Attorney Zehnder asked the board to review and address the 22nd condition for approval. The Board expressed their satisfaction with the progress made between both parties. The last condition that was not agreed upon was separate garage structures. The Board discussed the agreed upon conditions. Brian suggested the garages be considered as an extension of the primary dwellings. Attorney Zehnder suggested the garages be considered normal and usual accessary buildings with a garage on the first floor and living space on the second floor without a kitchen. He stated it is habitable space and the same right that everyone in the Town has for an accessory use. Attorney Zehnder informed the Board he believes Ten Lots Association is concerned that the garages will become two separate dwellings, so instead of 4 dwellings it will be 6 dwellings. He asked the Board to approve with the condition there will be no kitchens. Pat made a motion to open up to public input, Art second the motion. A vote was taken, and the Board unanimously voted to open to public input. Mark Wilson confirmed the discussion and productivity with the applicant and Ten Lots Association. He asked the Board to approve the buildings but not the garages. He also commented Ten Lots Association is requesting access to the Sea Camps road for construction vehicles. He understands since the Town does not yet own the Sea Camps the Board cannot vote on it but he is asking the ZBA specify a condition that if the Town agrees the applicate needs to use the Sea Camps road. Ellen read an email dated November 4th from Peter Lombardi the Town Administration in response to an email from Mark Wilson requesting construction vehicles accessing the Sea Camps road. In the email, Peter Lombardi indicated that the Town would not be involved in this private matter. Peter Johnson, 93 Bonnie Doone Cartway, encourage the Board to adopt all of the 21 conditions submitted. He expressed his Page 2 of 3 concern for the additional garages. Donna Heuchling, 179 Bonnie Doone Cartway, stated her concern for the future of the property with two owners and one lot and she wants to protect the property for the future. Drew Smythe, 95 Bonne Doone Cartway, expressed support for utilizing the Sea Camp road. He also expressed his opposition for the detached garages. Peter Johnson indicated there was testimony in September. He also informed the Board how the Ten Lots Association was organized. Attorney Zehnder informed the Board that rentals were pulled out of the agreement which was agreed by Ten Lots Association, and he is concerned that this is coming up again after it has already been agreed upon by both parties. Mark Wilson confirmed the condition on rental was agreed to be pulled out, however, if the applicant agrees Ten Lots will accept. Pat made a motion to close to public input, Bruce second the motion, the Board voted unanimously to close to public input. Attorney Zehnder will draft a decision with the agreed upon conditions. Art made a motion to approve the special permit for ZBA Case #21-22 with agreed upon conditions and additional statements written on behalf of Attorney Zehnder, Pat second the motion, a vote was taken and approved unanimously by the Board. Application Review of #21-23 Applicant: Sean and Ellen Darcy, (Represented by Attorney David M. Banash), 61 Consodine Road. Members present and voting: Art Stewart, Pat Eggers, Bruce MacGregor, Jeff Carter, and Brian Harrison Brian asked if Attorney Banash wanted to proceed with only four members of the Board. Attorney Banash requested the Board wait until a quorum was determined. While the Board waited Brian informed the Board that he received an email from the Select Board informing him that they revised their policy for appointing new members. He indicated that hopefully additional members will be joining the Board and this would alleviate the issues of a quorum. Pat indicated that hybrid meetings through Zoom will continue to be an option for the future and therefore will allow more accessibility which may attract future members. A quorum was determined, and Attorney Banash proceeded with the case. He confirmed with the Board that all documents were in their possession. He referred to the Building Commissioner’s decision. He suggested that the Board consider that the shed has been in the location for longer than 10 years. He referred to the affidavit stating that the shed has been in the location for over 10 years, and it has never had a notice of violation by the Town or anyone else. He indicated that for those reasons he is requesting that the Board determine the setback is unenforceable. He referred to the plan dated 2009 from the Town of Brewster website and the affidavit from Mr. Darcy the applicant included in the meeting packet. He informed the Board that he authenticated the maps from Mass GIS. He also referred to the septic plan included in the meeting packet. He then brought the attention of the Board to a statement from the previous owner indicating the shed was located there between 1998 and 1999. Mr. Darcy’s affidavit stated the shed has never been moved. He indicated he received photos from the abutter regarding the safety of the shed. He discussed the safety structure of the shed and indicated the Building Commissioner stated the shed was not unsafe. Brian asked if the Board had any questions. Art questioned the property line. Attorney Banash agreed that it was on the abutter’s property line by inches, but the issue was the not a trespassing issue but a zoning issue. If the abutters feel that Mr. Darcy is trespassing there is another avenue through the civil courts to determine trespassing. Jeannie asked how the applicant responded to the abutters stating the shed had been renovated? Pat read the letter received by the abutters indicating the renovations of the shed. Mr. Darcy indicated he did not modify the shed. He stated that it is the original structure. He did not make any repairs to the shed. The Board discussed the location of the shed using the pictures that were included in the meeting packet. Bruce asked why both neighbors are not discussing the location of the shed in order to resolve the issue. Attorney Banash informed the Board the neighbors were in discussion but there has been no resolution. Mr. Darcy informed the Board he is willing to fix anything on the shed, but he is not willing to move the shed due to the expense. There being no additional questions from the Board, Pat made a motion to open to public input, Jeannie second the motion, a vote was taken, and the Board voted unanimously to open to public input. Attorney John Kanaga representing Tom and Colleen Ladd, the abutters, spoke regarding the changes to the shed, suggesting the shed be moved or torn down. He indicated the Ladds want the shed off their property so they can install a fence along their property. He pointed out possible alternations of the shed. Jeannie asked if the fence was attached to the Page 3 of 3 shed and if it has been altered in any way. Mr. Darcy informed the Board that it was not a wall of the shed and that it has not been altered in any way. Pat suggested a compromise would be to get rid of the fence section so the Ladds could put up their fence. Attorney Banash suggested he would discuss with the Ladd’s attorney. After discussing with his client, Mr. Darcy, Attorney Banash indicated that he agreed to continue the case until next month. He requested to continue until the next meeting on December 14th. Bruce asked the Board members if they were able to identify the shed on the GIS map. They indicated that it was very faint. Bruce suggested a site visit. Brian suggested since a continuance has been requested, he can visit the site. Art made a motion to continue ZBA case #21-23, Pat second the motion, a vote was taken, and the Board unanimously voted to continue ZBA case #21-23 until the December 14th meeting. Application Review of ZBA #21-27, Applicant: Karyn Beedy, (Represented by Gabriel Panaite) 23 Blueberry Pond Drive. Members present and voting: Brian Harrison, Art Stewart, Jeannie Kampas, Art Stewart, Pat Eggers, and Bruce MacGregor. Karyn Beedy referred to a 5-page document that was included in the meeting packet. She stepped through the documents starting with the plot plan, outlining the property, then referred to the current floor plan and updated apartment plan. She discussed the photos with the egress. She informed the Board because she updated the plans she is not required to present to the State. She asked the Board to consider an accessory apartment. The Board discussed the request, Brian asked if there were any additional questions, there being none, Pat made a motion to open to public input, Art second the motion, there being no public input Pat made a motion to close to public input, Jeannie second the motion to close to public input, the Board voted unanimously to close to public input. Brian read the criteria for a special permit. Pat made a motion to grant a special permit for ZBA Case #21-27, Bruce second the motion, the Board voted unanimously to grant a special permit for ZBA Case #21-27. Matters Not Reasonably Anticipated by the Chair: None The next meeting of the Brewster Zoning Board of Appeals is scheduled for December 14th, 2021. Pat made a motion to adjourn the meeting, Bruce second the motion, the vote was taken, and the Board unanimously voted to adjourn. Vote: 5-0-0. Meeting adjourned at 10:13 pm. #19-37 Applicant: 19 Muskrat Lane LLC., Represented by Attorney Benjamin Zehnder Archive d: Friday, December 10, 2021 8:32:29 AM From: Benjamin E. Zehnder Se nt: Thu, 9 Dec 2021 23:40:46 To: Ellen Murphy Cc: brewplan; Glenn Wood (gwood@rubinrudman.com) Subje ct: RE: ZBA 19-37 19 Muskrat Lane Se ns itivity: Normal Hello Ellen: On b ehalf of my c lients , I am req ues ting that the Board o f Appeals p ermit me to withdraw matter ZBA 19-37 without p rejudic e. My thanks , Ben Benjamin E. Zehnder La Tanz i, Spaulding & Landreth 8 Cardinal Lane; P.O. Box 2300 Orleans , MA 02653 (508) 255-2133 (508) 255-3786 (fax ) (508) 246-4064 (mobile) bz ehnder@latanz i.com Orleans/Provincetown/Barnstable T h i s e m a i l m e ssage an d a ny fi l es tra nsm i tte d wi th i t contai n PRIVIL EGED AND CONFIDENT IAL INFORM AT ION a nd are i n ten ded on l y for the pe rson(s) to who m thi s e m a i l m e ssage i s add resse d. As su ch, th e y are sub j ect to a ttorney-cl i en t pri vi l ege a n d you are hereb y n oti fi e d th a t an y d i sse m i na ti on or copyi n g o f the i n fo rm ati o n rece i ved i n thi s em ai l m essa ge i s stri ctl y p ro hi b i ted . If you have recei ved thi s em ai l m essag e i n erro r, pl e ase n oti fy th e sen d er i m m edi atel y b y te l e p hon e o r em ai l a n d destroy the ori g i n a l m essag e wi thou t m aki ng a co py. T h ank you. EM AIL DISCLAIM ER: We do no t em ai l No n -Pu bl i c Co nfi de nti al In form ati o n i n a non -secu re m ethod . Accordi n gl y, such confi d enti a l i n fo rm ati on, i ncl u d i n g a cco unt i nform a ti on an d p erson al l y i den ti fi ab l e i nfo rm a ti on sh oul d not b e transm i tte d by non -e n crypted em a i l /e m a i l attachm ents. Use o f non -en crypted em ai l i s i nheren tl y i nsecu re. In no e vent sha l l we a cce pt a n y re spo nsi bi l i ty fo r th e l o ss, use o r m i suse o f an y i nform ati o n i ncl u d i n g confi denti al i nform a ti on, whi ch i s sen t to u s by em ai l o r an em ai l attach m e nt, nor can we gu a ra nte e re cei pt, accuracy o r re sp o nse to any e m a i l . BEWARE! WIRE FRAUD IS ON THE RISE. Acce pti ng wi re and di sburse ment i nstructi ons by e mai l is dangerous, especial ly change s to those i nstructi ons. V e ri f y by call ing the ori gi nator of the e mail #21-23 Applicant: Sean and Ellen Darcy (Represented by Attorney David M. Banash) 61 Consodine Road COMMONWEALTH OF MASSACHUSETTS TOWN OF BREWSTER ZONING BOARD OF APPEALS CASE FILE #21-23 IN RE: 61 CONSODINE ROAD, BREWSTER, MASSACHUSETTS: APPLICATION FOR APPEAL OF DECISION AND ORDER OF BREWSTER BUILDING COMMISSIONER DATED JUNE 29, 2021 ) ) ) ) Town of Brewster ZONING BOARD of APPEALS 2198 Main Street Brewster, MA 02631 SUPPLEMENTAL AFFIDAVIT OF SEAN DARCY IN SUPPORT OF APPEAL APPLICATION I, Sean Darcy, depose on oath and state as follows: 1. I am an applicant, together with Ellen Darcy, my wife, for appeal of the decision and order of the Town of Brewster Building Commissioner dated June 29, 2021, that alleges violation of the Brewster Bylaws regarding a shed ("Shed") located on our premises at 61 Consodine Road, Brewster ("Premises"). 2. Annexed hereto are true copies of the following: a. An image that I obtained from "Google Earth Pro Version 7.3.4" for the Premises in the year 2005 with a placemark that I added onto the image showing the Shed and boxes that read " Shed- Date April 2005" and "Legend Shed." See Exhibit A; b. Photographs showing the Shed that I have taken within the last month ("Photographs"). See Exhibit B. 3. The Photographs are fair and accurate representations of the interior and exterior of the Shed. They demonstrate that there has been no expansion of the footprint of the Shed since we purchased the Premises and that the structure remains of the same exterior dimension. We have not expanded the footprint of the Shed or caused it to be expanded since our purchase in 2013. 4. In addition, the allegations of an abutter to the contrary are conclusory and irrelevant. The enforcement action that is the subject of the June 29, 2021, decision of the Building Commissioner and this appeal does not allege that there was any expansion of the footprint 1 of the Shed since the dates of the plans annexed to the decision, the earliest of which is from 2011. There is no enforcement action pending regarding anything else. 5, The Photographs also demonstrate that the interior and exterior of the structure of the Shed is unchanged. We have not changed it or caused it to be changed since our purchase. 6. An abutter has alleged to the contrary, but even if the allegations were true, which they are not, they are irrelevant to this appeal. The 10 year enforcement preclusion set out by statute relates to an alleged violation of an ordinance or by-law. The Building Commissioner cited no violation relating to the condition of the Shed, only its location. 7. Just this past week I straightened a post that connects to a fence that abuts the Shed. The post and fence are connected to the Shed only by a nail. On information and belief, the post and fence are completely within the northerly property line of the Premises. They are not "structures" within the meaning of the Town of Brewster Zoning By-law. They are not the subject of the decision of the Building Commissioner that is the subject of this appeal. Executed under the penalties of perjury this day of December, 2021. 2 Exhibit A Shed - Date April 2005 &togie Earth Pro Version 7.3.4 3