Loading...
HomeMy Public PortalAboutZoning Board of Appeals -- 2002-01-08 Minutes Town of Brewster Public Meeting Zoning Board of Appeals Tuesday, January 8, 2002 7 p.m. Brewster Town Office Building, Room C Members present: Harvey Freeman, Chester Kennedy, Jane Remy, Arthur Stewart, ^ Philip Jackson, Ron Thibodeau, J. Bruce MacGregor, Brian Harrison, and new ninc Board Member Suzanne McInerney. w -+ n, The minutes from the previous meeting of November 13, 2001, and Decembff 11,- 2001, were approved with corrections. a D The research fee for 2002, set by the Selectmen, is the hourly rate of the loAst p@d rn town clerk, with first twenty (20) minutes researched at no charge. c The new assessor's maps do not identify on-site locations as the older maps did. The assessor will provide old abutters' maps that will accompany new maps in applications to the Board. Regarding a Continuance, Request for a Special Permit, Brewster Zoning By-Law Chapter 179, Article IV, Section 179-11, Table of Use Regulations, Retail and Service # 3- to allow a coffee/donut/baked goods shop in the Village District, Luke Brewster Realty Trust is not present. Board voted to move case to end of docket to allow applicants time to appear. 01-59: Thomas and Patricia Kennedy, 220 Winslow Landing Road, map 7, Lot 116. Appeal of the Building Inspector/Zoning Agent 's decision; request for a variance (By- Law: Chap. 179, Sec. 179-16, Table 2, Area Regulations, Note 7) to allow placement of existing free-standing, non-conforming shed; request for a special permit (MGL Code 40A, Sec. 6; By-Law Sec. 179-25) to alter, extend, or replace pre-existing non- conforming accessory building to single family residence. Members hearing this petition were Harvey Freeman, Chester Kennedy, Ron Thibodeau, Philip Jackson, and Brian Harrison. Opening with a history of the case, Patricia Kennedy, one of petitioners, along with David Reid, petitioners' attorney, told the Board that they purchased home and lot in 1994 and replaced the house with required building permit in 1995. Later replacement of existing shed without a permit was denied because of setback violations. Board also i 4 denied application for special permit and variance. Petitioners won reversal of ZBA decision in Orleans District Court, but Superior Court reversed decision on appeal by town and setback violation was reinstated. Mr. Reid argued that petitioners had no need for either a special permit or variance due to their rights under "grandfathering" clause and are therefore appealing the twenty (20) foot setback requirement for residential accessory structures. Failing that, petitioners seek a special permit under Chap. 40C, Sec. 6, permitting modification or i alteration of existing structures. Petitioners also seek a variance allowing the shed to exist. Referring to',Sec. 179-26, p. 2 (Grandfathering of property) and setback requirement (GL 40A, Sec. 6, para. 4), petitioners stated that lot area increases do not apply to certain lots. Property meets minimum required size and frontage. Petitioners further asserted that property is a lawful lot that existed on or before June 25, 1978, (created in 1932 on engineer's judgment as part of Winslow Landing), when no subdivision controls or zoning laws existed. Per Assessor's records, the home existed c. 1965, and therefore an increase in lot area does not apply. Setback requirements also do not apply, since, by definition, they are increases beyond original status. Orleans Court ruling also followed 179-126, since lot depth and frontage requirements do not apply to properties pre-1978, i.e., pre-zoning. Therefore, shed does not violate setback requirements because they don't apply. Taking each issue in turn, Board responded that cited case law pertains to a house and not a shed. Attorney Reid responded that case law addresses lot but concedes both cases mention houses, not sheds or empty lots. He also believes state by-law is more generous than town's, because it addresses subsequent amendments and grand- fathering and therefore protects the property. If Board agrees with petitioners' opinion, �i then setbacks do not apply. Board also found that intention of the "grandfathering" protection does not mean that new laws, such as setbacks, would never have to be complied with. It also further noted that the shed was rusty and pre-existing as far as zoning was concerned. Though structure was not in existence from c. 1994 to 1998, cement slab base remained. Board concluded that application is a special permit issue, not an exemption, because previous shed's cement slab was evidence of same location, same foundation, for a shed rebuilt on the same spot (Dialaway vs. Alben). Further, zoning law (179-30 re: abandonment) states that any non-conforming use of a structure or lot that has been abandoned or unused for a continuous period of two years or more shall not be used h again, except for a conforming use. 2 i } After questions from Board, petitioners further stated there was no need for a building permit because structure was "only a shed." Petitioners stated they had no excuse, other than series of misunderstandings, poor communications, and failure to act promptly for continuing construction after a stop work order was issued. Mail also had been sent to petitioners' old address. Petitioners assumed that Orleans Court's two decisions had concluded the matter finally in their favor,i.e., setbacks applied only to structures for which a permit was required or issued. Board noted that building anything petitioners want on this property is incorrect. Attorney Reid believed that, with a single family home, sheds and accessory structures less than 120 sq. ft. do not need a permit. Chairman Freeman asked Building Commissioner David Thyng to open hearing to public input. Mr. Thyng stated that first, there was a stop work order, a do not remove order with a notice to first file for a permit. Notices were mailed to Virginia and also left on site. Later, someone removed notice from shed, and lights were on at the house on site. Assessor's records provided the Virginia address. Mr. Thyng commented, "We did what we were legally required to do." Regarding by-Law, Mr. Thyng continued, "The cases cited . . . dealt with principal structures, not necessarily the dwelling, and also not garden shed. The previous rusted metal shed was seen back in 1995 during an inspection. The majority of the house had been taken down, perhaps some old woodwork needing fire stop work was left. That 1965 structure did comply with zoning at the time, which was the 30-20-20. We have certified site plans that show that. "Both our by-law and the state law give some protection to a pre-existing lot. It gives one exemption and one chance at rebuilding. And that is to build at the setbacks that replace the structure. One time only. With subsequent structures, if there are setbacks or other concerns, one needs a variance permit or a special permit, even sheds. "In the Kennedy's case, the shed was there without benefit of a building permit. Back in 1975, even sheds, regardless of size, were subject to building permits. So, unless the shed predated 1975, it was there without benefit of a building permit. So, this shed could not be recognized. There is nothing in town records, building permit records, or assessor's records indicating there was a shed there. "We cannot allow more than one chance at rebuilding while not meeting new setback requirements. To allow a rebuilding, disregarding setbacks now in force, doesn't make sense. They can apply for relief. I made a determination back in 1998 that the shed was in violation. . 3 "After reviewing this case, it was determined that the shed was in violation back in 1998, so it would be up to the Board to hear this case now, not myself (not any longer). Mr. Kennedy did not want to listen to us or the town attorney. Fortunately, the Superior Court judge did. This shed is not covered under the one-time exemption. The shed also happens to be one-and-a-half stories, not one story, and is a non-conforming, pre-existing structure. If the shed were the first structure were to be built there, it would be considered the primary structure." Board asked Mr. Thyng if town counsel would agree with his summary, and Mr. Thyng replied in the affirmative. In response to Board's request for other comments, Mr. Reid stated that the 1932- purchased lot is pre-existing, and the house could have been built right out to the boundary lines. The disagreement seems to hinge on "whether that exemption disappears once you've had that one free trip to the well. There is nothing in the By- Law that says you only get it once, or that you only get it for the first structure." Mr. Reid continued, 'There is nothing in the By-Law that says State law concerns vacant lots, as I see it. So yes, if we were under only state law.... once you build on it ...as in Willig vs Orleans, the paragraph in Chapter 48, Section 6, talks just about lots, so we assume only vacant lots. So, the first time you build under this paragraph, we go back to this paragraph. Once you build a house, we go back to the other paragraph that deals with modifications and alterations. The by-law does not say this. State law and town by-law say different things. If Mr Thyng's interpretation were correct (about the vacant lot application), I grant him that, if limited by this section. But, the by-law goes beyond that. It says these provisions shall not [pertain] to the erection, extension, alteration or moving of structures. What could these words mean, if they only applied to a vacant lot? The by-law expressly includes developed lots, and does not speak of protection only once, for it includes many categories, such as subsequent alterations and so forth." 6 Mr. Thyng: "The section we are discussing falls under article 8, which is titled 'non- conforming uses structures and lots.' I contend this lot, because of its size and frontage although protected for some bit, is considered as a pre-existing, non- conforming lot, and it has to be given a leeway, but still falls under the non-conforming and pre-existing. Any changes require review and interpretation. 179-26 falls under article 8. By-laws have different articles." With no further input, Mr. Thibodeau moved to close the discussion to public input, 2nd by Mr. Chester Kennedy, the Board all in agreement. Mr. Thibodeau: "There are so many problems: where did the mail go, confusion over permit, the meaning of "allow" and "not permitted." So, to stand behind the building inspector on the one-time issue is correct." Mr. Harrison: 'This is a tough issue, the wording of extension and alteration. The by- law should be changed. But without other case law to support the applicant, I have to lean with David [Thyng]. We are talking about a new structure, not moving, alteration, or extension. I am with the building inspector." Board member Jackson: "With absence of legal opinions, attorney opinion, and others, I will have to side with the building inspector." Mr. Chester Kennedy: "There are frustrations on both sides. My concern is with c 40A, the by-law. It is a matter of interpretation, I agree, but to me this pertains to the main house, or if the shed was there first, then the shed would be the first consideration. But, that's not how it was, or that law would be so open-ended. It is inconceivable. I am sympathetic for both sides, and I have concern for future cases. So, I think that the rule of law has [forced] me to support the By-Law." Chairman Freeman. "I, too, support the by-law. It is clear to me, beyond a shadow of doubt, that the intent of our by-law is not to permit the open- ended extension with a total disregard for setbacks, as espoused by the applicant. I don't think the town intended this to be the case, and I think it would be totally injurious to take this misinterpretation to the future cases. If one were to think we were setting precedent here, it would be a very difficult precedent for us to maintain and totally unfair. So I do not feel it is the intent of our by-law to support the contention of the applicant to disregard lot area and setbacks." A motion to uphold the decision of the Building Inspector was made by Mr. Thibodeau, 2"d by Mr. Chester Kennedy, the Board all voting in favor. The decision of the Building Inspector is upheld. On the request for a special permit or variance, Mr. Reid stated, 'This shed needed to be replaced. The condition of it resulted in replacing it. I do not believe the by-law addresses this condition. Mrs. Kennedy has described the shed. There is, as well, an abutter's description. Our proposal is to question as to whether the [replacement] shed is more detrimental [than the original one]. Documentation of what exists already in houses in her neighborhood was gathered by Mrs. Kennedy and myself. Fifteen (15) sheds are visible from the road. All sheds are in the back yard, right by the fence, in several cases right by the abutter's shed, garage or house. The Kennedy shed is located near a fence, the abutter's garage, and surrounded by trees. To move it to within 20 feet of the property line would have the shed more visible, more intrusive. And if the shed were attached to the house then I probably wouldn't need to be here, anyway. Two abutters liked the shed and have supported their request for consideration. p • t 'The existing slab was used as the foundation for the new shed. Its placement is consistent with other sheds in the neighborhood. I do not see that this shed could be considered more detrimental to the neighborhood than the preservation of the old rusted metal shed on the same spot. One abutter not in favor is incorrect as to the placement of our shed. It is not near their property. It is some distance from their property, and there are other issues I will go into, in respect to the additional requirements for the variance, the special relationship to the soil conditions, shape, structure or topography of the land." The Board stated its preference to hear the issue of the variance separately, in order to keep votes in order. t Mr. Reid: "It is backwards for us to come to you after the shed is built. I wish it weren't that way. (A picture of the current shed is presented to the Board.) The shed is not more encroaching, not more detrimental to the by-law or the neighborhood in terms of its location. Its size is not a problem. It's the location. And I submit, we can F leave it where it is. It is similar to other sheds." Chairman Freeman asked for any questions from the Board. There being no further questions, the meeting was opened to public input. Mr. Thyng: "If [petitioners] came to the Board and requested a special permit to build a new shed, this was not what was done. There, therefore, was no protection. The slab being there was not enough. I believe town counsel, due to the December 30t'' letter, agrees with me. This has come up before. There were other complaints about the Kennedy shed. It makes no difference if there are other sheds in the neighborhood. The circumstances are different. A slab is not a structure, slabs are poured for telescopes, barbecues, and so forth. If on-grade, it is not a structure. If it were sitting high, yes, that would have a bearing on this case. There is also a 1 story, 30' height limit. They have a loft area there constituting more than one story. The shed must also be anchored, so that it stays where intended. The special permit issuance is to be considered here, a zoning permit and that the setbacks [ought] to be respected, and if necessary, applicant would be referred to the Board for a variance." Motion to close issue to public input was made by Mr. Thibodeau, 2"d by Mr. Chester Kennedy, the Board all in agreement. Mr. Thibodeau: "I agree with the Building Inspector. The time lapse, there is no building there. If the shed had been the same in dimension there probably would have been no complaints. It is n©t a typical-Looking shed. It towers above the next door garage. It is out of character, and I would vote against it just on the abandonment issue." t • 1 t Mr. Jackson: "I agree. If it had come to us in normal fashion, I suspect we would have tried to work with the applicant. It got to where it was in an untoward fashion. I will have to agree with Ron [Thibodeau]." Mr. Harrison: How it got here is irrelevant. It is not pre-existing, that is what the problem is. I have sympathy, but as a matter of law, it is not there." i Mr. Chester Kennedy: "I can't see that it is a special permit item." Chairman Freeman: "I cannot support a special permit issue because the structure is not there. It was abandoned, left abandoned for a number of years. The building inspector is correct that, if it had been there, remained and rebuilt while in place, then it could qualify for a special permit. At this point, it now requires a variance. I would have to vote against a special permit as well." i Mr. Chester Kennedy moved that the request for special permit be denied, 2"d by Mr. Thibodeau, the Board all voting in agreement. The application for Special Permit is denied. On the application for a variance, Mr. Reid continued, 'The principal requirement for a variance is there [must] be some special circumstances relating to soil condition, shape, or topography of land or structure, which results in an undo hardship if the by-law was literally applied to this situation. We offer special circumstances: (1) In that the shed was put on the existing foundation. The foundation was already there. (2) And the house, that there is no other good place to put the shed other than on the corner of the house, but the aesthetics would be an intrusion on the family. We believe the shed is within the existing pattern of the neighborhood. "Only three (3) of the thirteen (13) sheds in the neighborhood have special permits. All others have no permits or variances. An example is the Board's consideration of a large shed on a small lot that was granted a variance, noting that putting a shed in a [confined] space would block doors, gutters, downspout, perhaps even the septic, would be inconvenient to the applicants. You took those considerations into effect to make a reasonable accommodation for them." The Board replied that they were building a new shed. This was not an issue of a pre- existing shed. This Board considered this case according to they-law. These are two different situations. Mr. Reid: "It was not close to the property line, but close to the house. I submit you made a consideration to keep it from the house, as we are asking. And, that we can leave it where it is, since it is on the original slab, though non-conforming. This is the appropriate place for the shed to be." till 111 II 11 Questions from the Board concerned hazardous materials being stored there, the shed's proximity to other buildings, and if it were high enough to stand up in, concerning the basement (which was never built up) and that an existing consideration for storage and so forth was not implemented in this regard at that time. Mr. Reid: "Soil conditions, to bolster the applicants' case, as to the lot or structure are special conditions." Chairman Freeman opened the meeting to public input. The Board asked if the shed s that is now already built were anchored. Mr. Thyng: "We do not know. There is no way to ascertain this. And since the state i law does not consider the anchoring, but rather circumstances such as soil condition, I see none of this there; no shape or topography of land or structure, nor anything affecting the zoning in which the lot is located. I see nothing unusual. "The hardship that is here is self-imposed because they did not take the steps that should have been taken. The actual grounds for a variance have not been supplied. I think whatever the Board decides will still have to go back to the Superior Court judge." Mr. Reid: "Unless there is an appeal, the case will not go back to the Superior Court. The matter is stayed pending your decision, but not due to it. The magistrate also said that the shed would not have to be moved." Mr. Thibodeau moved to close discussion to public input, 2"d by Mr. Chester Kennedy, the Board all in agreement. Mr. Harrison: "I would consider granting this, except for the detriment to public good, in that the shed is not a one-story and that its height and bulk are too tough of an issue." Mr. Thibodeau: 'The size, and that this Board is not an enforcement Board, so the issue of the other sheds is not an issue. We tried to work with the Kennedys. Someone even took down our stop-work order. The applicant needs to bear some of the responsibility of where the hardship came from. There is a certain amount of due diligence an applicant must show when on a lot this small. Also a variance is very difficult to get, and in this case, the lot does not concern a variance. We tried to work with you more than you could have expected. Mr. Jackson: "Variances are hard to get, and I don't see how we can stretch it in this case, this time." Mr. Chester Kennedy: "I can find financial hardship only in moving it. A variance is not based only on this. The shed is too close to the property line. I cannot find a variance- related reason to allow this. For that reason alone, I will deny this application for a variance." Mr. Freeman: "I see nothing in relation to soil condition, shape, or topography of the land that causes me to feel that the shed has to be located where it is. I don't see hardship is a factor here, for the things placed in the shed could have been constructed when first rebuilding the house. There is a substantial detriment to others in the neighborhood. Others have written saying they find this kind of structure to be abhorrent to the neighborhood. And the fourth issue of the variance criteria, as to the size of the structure; essentially, a two-story does essentially derogate from the intent of the by-law. The shed is not in compliance with the purpose, as we see it, of the Brewster town by-law." Mr. Thibodeau moved to deny the application for the variance, finding that the application does not prove hardship of the land, has proved to be a detriment to the public good, and would derogate from the intent and purpose of the by-law, 2"d by Chester Kennedy, the Board all voting in favor to deny. The application for variance is denied. 01-60: William Kargman, 290 Foster Rd., Map 6, Lot 9. Request for special permit for sand drift fence and variation to appeal decision of building inspector. Hearing this case are Messrs. Kennedy, Thibodeau, MacGregor, Jackson, and Ms. Remy. Messrs. Jack McCormick and Mark Burgess for the petitioner: "The property is at 290 Foster Rd. with, on the property, an existing stairway down the bank, which permits beach access. There is a need to address erosion, storm damage control, protection from the hazards of tidal water, and flood in terms of what is happening underneath the existing stairwell. "The property is in a conservancy district so it comes under 179-6, Regulations of the Wetland Conservancy District. We are applying for a special permit for a beach nourishment project because Sec. e 5 requires a special permit for any filling of soil or sand in this district. This nourishment plan does not result in any detriment to the neighborhood; far from it, it furthers the purpose of the wetlands conservancy district. It is further approved by the Brewster Conservation Commission which has jurisdiction over this project." The Board looked at the plan presented. Messrs. McCormick and Burgess: 'The appeal for a variance is due to our desire to also build a drift fence, which is a component to this, which is what will hold the sand. The i building inspector says we need to apply for a Variance, because it is either prohibited by the wetlands conservancy district or the fence is not. We are looking for a beach nourishment special permit." Board: " Let's hear the appeal first." Messrs. McCormick and Burgess: 'The building inspector suggests that this drift fence is prohibited in the wetlands conservancy district. Our contention is that it is a variance for a drift fence. It is not a residential or commercial structure, in that it is a fence. It is not a walled and roofed building." Mr. Thyng: "The type of structure of the sand fence is not listed as being permitted by a special permit. So, it needs to be addressed through the variance. Long guard tubes are big sandbags, 4 x 20 feet, and must remain covered. If uncovered, they are prone to damage from ultraviolet light and storm debris. So the purpose of beach nourishment is to cover the tubes so that they are protected for a long period of time, (about five years). The purpose of the drift fence is to provide a partial wave break of about 5 years, so that when the wave energy hits the fence, some of the sediment suspended in the wave is actually deposited behind the fence. "It is the only means of building up the beach while dealing with wave energy. The posts are 10' long, 8"(?), and need to be this length to provide sufficient structure, so that the fence will not eventually spill forward during storm after storm. "The drift fence is here to protect the long guard tubes, the long guard tubes protect the bank, the bank protects the house. It is all connected. "First Encounter Beach has examples of structures that have failed in just this manner. This drift fence is more substantial than the 1" slats of a snow fence that cannot hold up or do what this drift fence is designed to do. There is no pressure-treated wood. It is not a permanent structure. The BCC, the fence, and tubes go hand in hand. A snow fence deals with airborne sand, this deals with water borne sand." Board: "Any further question about the appeals, variance part of this application?" Building Inspector: 'The petitioner has grounds for a variance, due to the hardship, and because it is unique to this property and the location of the stairway. There is an existing permitted shore front protection structure, the long guard tubes. The reason for this fence is because the tubes have been exposed and need to be protected, and this is in harmony with shorefront protection. Neighbors have a rock, hard, structure. There is a long guard tube structure in Eastham." • 1 Motion was made to close issue to public, seconded, the Board all in agreement. Mr. Thibodeau: "As to the appeal, I support David that it requires a variance." Board members agree. Ms. Remy moves to uphold the decision of the BI in that there ` is a need for a request for a variance, seconded, the board all in favor. Mr. Thibodeau on the variance: "Specifically, we have property and circumstances that relate specifically to soil conditions and arguably the topography, plans not generally encountered in the zoning district. If relief is not supported, this will result in significant hardship to the applicant, n that what they have now will be exposed, will likely deteriorate. In affording relief, it does not derogate from the intent of the by-law. The purpose of the by-law is to protect property from the hazards of flood and tidal waters. And it is done without detriment to the neighborhood as evidenced by the approval of the conservation commission. Board asked if the tubes were there legally, answer in the affirmative. Board concluded that it is clear the applicant is asking permission to protect rights he already has. Motion made to close to public input, seconded, the Board all in agreement. Chester, as to the variance, Messrs. MacGregor and Thibodeau: "A good job of explaining how he met the criteria." Mr. Jackson, Ms. Remy: Call for the question. Motion made to allow the posting of the drift fence, seconded by Ms. Remy, the Board all in favor of the variance. The stamped map, the most recent, was signed by Board members. Regarding application for special permit: Under section 5, a special permit is required for any landfilling. The proposal is to vegetate the area with beach grass. Applicants believe this is what is anticipated by the conservancy district by-law section. It furthers the purposes of 179-6a, will not be detrimental to the neighborhood, and would actually be of benefit. Motion made to close to public input, seconded, the Board all in agreement. Ms. Remy moved to grant special permit for beach nourishment, seconded, Board all in favor. Mr McCormack will draw up the decision for that. a 01-61: Elsie Herrman, 200 Crowells Bog Rd., Map 49, Parcel 12. Request for a special permit under Brewster by-law Art. II, Sec. 179-6 E(3), to replace existing dock and a proposed extension on Long Pond. f Hearing this case were Chairman Freeman, Messrs. Thibodeau, MacGregor, Harrison, and Stewart. Representing petitioner, Mark Burgess, Coastal Engineering, and petitioner's son Peter Herrman, stated that the project started under the chapter 91 amnesty program, and conservation commission required filing of notice of intent. In addition to existing dock are two extensions in water of about 6". Petitioner wants an extension so that dock is more useable since water level has dropped. Two 8' extensions had been approved. Dock is now in 11/2 feet of water, barely serviceable. Extensions are in character with other docks on lake. They do not affect the protection of the beach and/or area. Dock and extensions are also a seasonal structure and removed and stored in an approved, appropriate up-land structure at end of each season. f Original plans for four more sections so that the dock would extend into 21/2 feet of water were dropped New plans have been drawn up. Plan dated 12-05-01. Home is seasonal, used 4-5 weeks out of the year. Dock would be used to launch a small boat, row-boat. Adding two more extensions would make 4 sections, 28 feet of dock, 71/2 feet of access ramp, as per plan, total length 35 feet from shoreline. t Mr. Thyng commented that there was no Town of Brewster zoning at the time the dock was first built. There may have been state law. Motion made to close to public input, seconded, Board all in agreement Motion made to approve request for special permit, subject to the conservation commission requirements, and plan c 14221, dated 12-05-01, seconded by Mr. Harrison, Board all voting in favor. Petitioners for Luke Brewster Realty Trust still not present, Board voted to allow applicant ten (10) days to sign waiver form in order to gain continuance until February meeting. Motion by Mr. MacGregor, 2"d by Mr. Stewart, Board all in favor. Motion made to close meeting, seconded, Board all in agreement.