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).
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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
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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
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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
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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
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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.
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Exhibit A
Shed - Date April 2005
&togie Earth Pro Version 7.3.4
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