HomeMy Public PortalAboutPlanning Board Packet 03/08/23 supplementalSUPPLEMENTAL INFORMATION FOR
APPROVAL NOT REQUIRED, CASE NO. 2023-03
APPLICANT/OWNER: 178 BONNIE DOONE CARTWAY, LLC
PROPERTY: 178 BONNIE DOONE CARTWAY
Memo: PB#2023-03 Application of an Approval Not Required Decision
DECEIVED
My 2023
To: Brewster Planning Board
From: Ten Lots Association, Inc. Board of Directors
Date: 6 March 2023
Re: PB#2023-03 Application of an Approval Not Required Decision
P',E-'.»TER PLANNING BOARD
ZONING BOARD OF APPEALS
The members of Ten Lots Association, Inc. (home owners along Bonnie Doone Cartway) seek
clarification regarding the Application for Endorsement of Plan Believed Not to Require
Approval (ANR)—PB#2023-03 for 178 Bonnie Doone Cartway, and the associated Staff
Recommendation from Jon Idman, Town Planner dated 22 February 2023.
We have two primary questions or issues regarding this application. First is whether the
property meets one of the minimum requirements of such a ruling, and second if the size of Lot
2 as configured supports the planned number of buildings.
Definition of Subdivision
Per Brewster code (290-8 Adequate access.) "Plans shall be endorsed as not requiring approval
under the Subdivision Control Law, and subdivision plans shall be approved, only if each building
lot to be created by such plans has adequate access as intended under the Subdivision Control
Law, MGL c. 41, §§ 81K through 81GG." Members of TLAI recognize that the two lots created as
part of this application appear to provide the stipulated geographic access in accordance with
associated Brewster requirements, and thus would allow for the option of a separate and fully
independent driveway access to the Lot 2 noted on the 15 February 2023 drawing from J.M.
O'Reilly & Associates, Inc. and included in the PB#2023-23 packet. Thus, an ANR determination
would appear to be warranted based on the geographic access.
However, prior discussions at several ZBA meetings, and the resulting agreement have
stipulated that only one driveway is allowed to be created for this property (see conditions filed
with Brewster, dated 19 November 2021, specifically Condition #19 included with this memo).
These prior limiting agreements appear to conflict with the requirement that each newly
created lot must have adequate access to allow for an option to create a new entry point as a
minimum requirement of an ANR ruling. While a mandated, single driveway shared with Lot 1
meets the requirement stipulated in the agreed upon conditions, it does not appear to meet
the requirement that each lot has adequate access such that an independent driveway can be
an option. In fact, it appears to negate the option of such a driveway, and thus Lot 2 would not
meet a minimum requirement of an ANR decision.
6 March 2023
Ten Lots Association, Inc. Response to PB#2023-03 Page 1 of 3
The TLAI homeowners association respectfully requests clarification as to which element
establishes legal precedence in the future should Lot 2 ever be sold or become independent of
the current owner 178 Bonnie Doone Cartway, LLC, and what the implications are of such an
apparent conflict in the Town of Brewster rulings.
Allowable Residential Units
The original decision allowed for four pre-existing, non -conforming residential units to be
replaced by four residential units (one rebuilt, three brand new) and two detached garages with
apartments, for a total of six buildings on one 386,638 (8.875 AC) lot. Brewster's code § 179-72
Allowable residential units. states that the "maximum number of residential units in a NRPD is
calculated by a formula based upon the net acreage of the property This calculation
involves two steps, calculating the net acreage and dividing by the base allowed density, or
number of acres required per dwelling unit."
Using the process outlined in sections 179-72.1 Net acreage calculation the net acreage would
appear to be 173,200 sf (3.974 AC). Per the process outlined in section 179-72.2 Unit count
calculation noted below, it appears the maximum number of residential dwelling units that
would be allowed on the newly defined Lot 2 would be 1.333 units.
Total Area 231,250 sf (5.308 AC)
Upland Area 173,200 sf (3.975 AC)
Wetland Area 58,050 (1.333 AC)
231,250 — 58,050 =173,200 (3.975 AC)
4 /3 = 1.33 unit count
The TLAI homeowners association respectfully requests clarification as to whether the creation
of two lots from the previous single lot requires a recalculation of the net acreage and the
number of allowed residential units, or does the previous decision regarding pre-existing, non-
conforming buildings and its associated conditions take precedence over the current request?
Brewster Code Sections
179-72.1 Net acreage calculation.
The factors named below are included in this section for net acreage calculation purposes only
and do not convey or imply any regulatory constraints on development siting that are not
contained in other applicable provisions of law, including this zoning bylaw. To determine net
acreage, subtract the following from the total (gross) acreage of the site:
A.
Half of the acreage of land with slopes of 20% or greater (2,000 square feet or more of
contiguous sloped area at least 10 feet in width);
6 March 2023
Ten Lots Association, Inc. Response to PB#2023-03 Page 2 of 3
B.
The total acreage of lakes, ponds, FEMA one -hundred -year floodplains, and all coastal and/or
freshwater wetlands as defined in MGL c. 131, § 40, as delineated by an accredited wetlands
specialist and approved by the Brewster Conservation Commission through an abbreviated
notice of resource area delineation (ANRAD); and
C.
Land subject to easements or restrictions prohibiting development.
Applicants shall use the Field Data Form found in Appendix G of the Massachusetts DEP
Handbook "Delineating Bordering Vegetated Wetlands Under the Massachusetts Wetlands
Protection Act" (1995) (the "Handbook"). The complete form shall be submitted, including all
methods of determination, i.e., vegetation, soil, and any other indicators, as provided for on the
form. If detailed vegetative assessments are not required by the Handbook for a particular site,
the reasons must be noted on the Field Data Form. At the Planning Board's discretion, any of
the information described above may be taken from current geographic information systems
data available from the Massachusetts Department of Environmental Protection, MassGIS, and
other credible sources, including delineations registered by the use of global positioning
systems. The Conservation Commission may request more detailed information for potentially
more sensitive areas.
§ 179-72.2 Unit count calculation.
To determine the base maximum number of allowable residential dwelling units on the site,
divide the net acreage by five in the RR District, or by three in the RL and RM Districts.
Fractional units of less than .5 shall be rounded down and .5 or more shall be rounded up.
6 March 2023 Ten Lots Association, Inc. Response to PB#2023-03 Page 3 of 3
Bk 34769 Pg242 #82714
12-21-2021 @ 11:47a
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Town Of Brewster
Zoning Board of Appeals
2198 Main Street
Brewster, Massachusetts 02631-1898
(508) 896-3701 ext. 133
FAX (508) 896-8089
Benjamin E. Zehnder, Agent
8 Cardinal Lane
Orleans, MA 02653
APPLICATION:
November19, 2021
ZBA No. 21-22
At open meetings held on September 14, 2021, October 12, 2021 and November 9, 2021, the Brewster
Zoning Board of Appeals considered the Application for Special Permit No. 21-22, submitted by Mr.
Benjamin Zehnder for property located at 178 Bonnie Doone Cartway, Map 102 Lot 13, in the RM
zoning district, described in Barnstable County Registry of Deeds Book 27190, Page 106 for
property owned by Ruth Marie Cobb Hangosky as Trustee of the Cobb Family Trust.
Present and voting were Board Members: Brian Harrison, Patricia Eggers, Arthur Stewart, J. Bruce
MacGregor and Jean LR Kampas.
APPLICATION REQUEST:
The applicant seeks a special permit pursuant to MGL c. 40A s. 6 and Brewster Zoning Bylaw Section 179-
25B to alter or expand a pre-existing nonconforming use, ie multiple dwellings on one lot, by demolishing
three of four existing dwellings and constructing three new single family dwellings with accessory
structures.
TESTIMONY:
• Applicant/Attorney Benjamin Zehnder and site engineer John O'Reilly presented the request.
• Abutters living along Bonnie Doone Cartway, spoke against the request, citing concerns about
damage to and permanent alteration of the rural and bucolic Bonnie Doone Cartway,
intensification of the nonconforming use, timing of proposed construction and the possibility of
two proposed garage/habitable space structures being converted to separate dwellings.
• Prior to the November 9, 2021, hearing, the applicant and interested abutters negotiated and
presented to the Board a set of conditions for management of the project and Bonnie Doone
Cartway. These conditions are numbered 1-21 in this Decision.
• Abutters remained concerned about conversion of two garage structures into separate
dwellings.
FINDINGS:
Bk 34769 Pg243 #82714
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1. The property comprises 412,078 ± sq. ft. / 9.46 ± ac. of land developed parcel of land in the RM
zoning district and is improved with four pre-existing cottage type single family residences.
2. Based on the size of the lot, only two dwellings are permitted, therefore the four dwellings are
non -conforming.
3. The proposal is to demolish three of the cottages and replace them with new larger single-
family residences. One residence will have an attached garage and two will have separate
garages with habitable space in them.
4. The property will continue to be used for four residential dwellings.
5. The lot contains adequate land area for location and use of the new dwellings.
6. The Conservation Commission has approved those portions of the improvements located
within conservation jurisdiction.
7. The construction and use of the three new dwellings in addition to the fourth dwelling will not
be substantially more detrimental to the town or the neighborhood that the use of the dwellings
as presently located and constructed
The Board moved and voted unanimously to grant the special permit upon the following conditions:
Prior to Start of Construction Activities;
1. The applicant (or their designated representative) and the Ten Lots Association, Inc. ('I'LAl)
shall establish an appropriate point of contact for both groups.
2. The Applicant and TLAI representatives will agree on the frequency of inspections of the
roadway, during the different phases of construction process.
3. The applicant and TLAI shall establish a complaint line mechanism (phone and email) for TLAI
representatives to expeditiously notify project developers of road damage and road repair
requirements and other issues associated with the construction. The contractor must digitally
respond within 24 hours and provide a written action plan with measurable action items within
three (3) days to address the issue.
4. Contractor shall video and photograph the roadway prior to any work being started on the
project. Copies shall be made available for distribution, if requested.
5. The Applicant and TLAi representative will walk the roadway so as to determine and agree
upon the necessary trimming along the roadway so as to ensure smooth access for the larger
trucks.
6. At the time of the installation of the limit of work line for the dwellings, the Conservation
Commission Agent, engineer and contractor shall walk the roadway so as to determine the
locations of straw wattles so as to protect the adjacent wetland areas from wash out or erosion.
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Bk 34769 Pg244 #82714
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7. The entire roadway shall be trimmed only to the extent required by the Brewster Fire
Department The vegetation shall be trimmed back so as to provide a 14 -foot wide and a 14 -
foot high "window" so as to prevent the vehicle traffic from damaging the vegetation.
8. The areas of the dirt/gravel roadway, between 121 and 135 Bonnie Doone Cartway
immediately adjacent to the wetland area shall be covered with a 4 -to -6 -inch layer of crushed
gravel so as to maintain the stability of the roadway. Prior to undertaking said modifications,
the developer will meet with and mutually agree with TLAI representatives on the timing and
details of such pre -construction roadway preparations.
9. The Applicant will provide a detailed project schedule or schedule of activities to the TLAI
representative. The Applicant and the TLAI representative will agree to establish a process to
update and coordinate the schedule on a continuing basis.
During Construction Activities;
10. Applicant will provide the TLAI representative weekly updates and schedule of activities for the
week upcoming.
11. All efforts will be taken to limit the vehicle trips up and down Bonnie Doone Cartway, including
but limited to:
a. No heavy construction vehicles shall travel past the proposed driveway entrance off
Bonnie Doone Cartway (access to Treetops).
b. Carpooling by the builders and contractors where feasible
c. Pre -established time during the day for scheduled deliveries and heavy equipment
access.
d. Applicant agrees to make every attempt to limit the size of the delivery trucks so as to
limit the impact to the roadway. (le: Staged materials off -site and coordinate the delivery
of the materials so allow smaller construction vehicle to bring the materials to the job
site).
12. All construction and delivery parking and vehicle turn-arounds will be done on project
property. No construction or delivery vehicles will use TLAI property for parking, deliveries,
staging, storage, or turn arounds at any time or for any reason.
13. Project developers will officially inform all members of the construction and development team
of a mandatory, maximum 10 mph speed limit while on Bonnie Doone Cartway. Further,
construction vehicle traffic will allow for a residential right of way for Bonnie Doone Cartway
residents in all practicable instances.
14. Heavy construction activities and associated transit of heavy construction vehicles will not take
. place on Sundays and holiday weekends. Any such heavy construction activities and vehicle
transit will be specifically noted on the coordinated schedule.
15. Applicant shall inspect Bonnie Doane Cartway after every rainfall event so as to make whatever
repairs are needed to protect the abutting properties along the roadway.
a. Applicant will take corrective actions within 24 hours of any identified issue by the TLAI
representative.
b. The erosion controls (Wattles) shall be inspected, and repairs as needed.
3
Bk 34769 Pg245 #82714
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Post Construction:
16. Applicant will restore the roadway to as close to the pre -construction conditions as possible
within forty-five (45) days of the completion of construction. Post construction improvements
may include but limited to the following:
a. Scraping and removal of any excess crushed stone along shoulders and center of the
travel way.
. b. Placement of topsoil along the center of the travelled way and plant the loam with a
drought tolerant grass seed mix.
c. Restore the shoulders along the traveled way so as to restore the pre -construction width
of the roadway.
i. Loam and seed (drought tolerant grass seed) shoulders.
d. As required, Applicant will "sand" the restored travel way (wheel strips) so as to re-
create the surface of the roadway, pre -construction.
General Conditions:
17. No fence will be installed along the Bonnie Doone side of the property unless agreed by TLAI,
which permission shall not be unreasonably withheld.
18. Compatible and appropriate plantings will be maintained to reasonably screen year-round the
houses other than Treetops from the road.
19. The existing entryways off Bonnie Doone Cartway to the 178 Bonnie Doone property will
continue to be used as shown and widened on the site plan. No additional entryways onto
Bonnie Doone Cartway will be created. The entry and driveway to the Treetops property will
remain as is. The initial 50-75 feet of the driveway into the larger property will remain as is
and will be utilized as the main drive. The new driveway will be merged with the existing
driveway approximately 50-75 feet from the existing entryway.
20. in the event gas or other utilities are installed by the applicant the neighboring TLAI residents
will have access to that infrastructure for supply purposes, with residents responsible for any
additional cost of such service and provided that the level of service to the applicant will not be
degraded.
21. No element of the applicant's property will be used for commercial purposes or business
functions. The property may be used for incidental rentals of dwellings as single-family
dwellings, however no more than one dwelling may be rented at any one time, and accessory
garage structures may not be rented or used separately from their associated principal
dwellings.
22. The property will be used for no more than four dwellings as proposed.
23. There will be no kitchens installed in the detached garage accessory structures.
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Bk 34769 Pg246 #82714
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Brian Harrison, Chairman
1
This decision is filed with the Town Clerk, Town of Brewster on
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JOHN F. MEADE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEDS
RECEIVED & RECORDED ELECTRONICALLY
Bk 35487 Pg195 #56590
11-16-2022y 10:13a
Benjamin E. Zehnder, Agent
8 Cardinal Lane
Orleans, MA 02653
APPLICATION:
Town Of Brewster
Zoning Board of Appeals
2198 Main Street
Brewster, Massachusetts 02631-1899
(508) 896-3701 ext. 133
FAX (508) 896-8089
October 11, 2022
ZBA No. 22-13
At an open meeting held on October 11, 2022, the Brewster Zoning Board of Appeals considered the
Application for Special Permit No. 22-13, submitted by Mr. Benjamin Zehnder for property located
at 178 Bonnie Doone Cartway, Map 102 Lot 13, in the RM zoning district, described in Barnstable
County Registry of Deeds Book 34940, Page 320 for property owned by 178 Bonnie Doone
Cartway, LLC.
Present and voting were Board Members: Brian Harrison, Patricia Eggers, J. Bruce MacGregor, Jeff
Carter and Trish Metz.
APPLICATION REQUEST:
The applicant seeks a special permit pursuant to MGL c. 40A s. 6 and Brewster Zoning Bylaw Section 179-
256 to amend prior special permit no. 21-22, approving alteration of a pre-existing non -conforming use,
to relocate the prior -approved driveway location.
TESTIMONY:
• Applicant/Attorney Benjamin Zehnder presented the request, explaining that the existing
driveway, which is also part of a water easement held by the Town of Brewster, would be
allowed to grow in and the new driveway constructed approximately 100' to the south of the
existing driveway. The Town would continue to hold the easement and would remove
vegetation as necessary to access the easement.
• Abutters living along Bonnie Doone Cartway, spoke against the request, citing concerns about
change of the driveway location that they had agreed to, and the effect of clearing the new
driveway on the view of and over the property.
Bk 35487 Pg196 #5659C
.7.
FINDINGS:
1. The revised driveway is of similar width to that of the existing driveway.
2. The revised driveway is oriented to Bonnie Doone Cartway in such fashion as to make the
entrance easier and safer for emergency vehicles and trucks than the existing driveway.
The change in driveway location will not alter or negatively impact the proposed use of the
property as compared to the existing driveway.
4. The change in the location of the driveway will not be substantially more detrimental to the
town or the neighborhood that the existing location as previously approved by the Board.
The Board moved and voted unanimously to grant the amendment of the special permit upon the
following conditions:
1. The applicant shall till and cover with 3-4 inches of loam the first 50' of the existing driveway in
order to facilitate regrowth of natural vegetation.
2. The applicant will obtain approval of the Fire Department for the new driveway prior to
construction of the driveway.
Brian Harrison, Chairman
This decision is filed with the Town Clerk, Town of Brewster on 0e U/V 20
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Town Clerk
The twenty -day appeal period has lapsed the i D / day of I VNQ ' )ti^ 20
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JOHN F. MEADE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEM
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