HomeMy Public PortalAboutZoning Board of Appeals -- 2002-02-12 Minutes TOWN OF BREWSTER
PUBLIC MEETING
ZONING BOARD OF APPEALS
Tuesday, February 12, 2002
7.00 P.M.
Brewster Town Office Building
Members present: Chairman Freeman; Messrs. Harrison, Jackson, Kennedy, and
MacGregor; Mss. McInerney and Remy; Messrs. Stewart and Thibodeau.
Minutes of meeting of Tuesday, January 8, 2002, were approved as corrected.
Chairman Freeman announced that March meeting has five (5) cases, and that
Board members should pick up their packets early.
01-54 - Continuance - Luke Brewster Realty Trust, 15 Lower Road,
Map 20 Lot 39 - Request for special permit under the Brewster Zoning
By-law,. Chapter 179, Article IV, Section 179-11, Table 1, Use
Regulations, Retail and Service #3 - to allow a coffee/donut/baked
goods shop in the Village Business District.
Hearing this case were Chairman Freeman; Messrs. Jackson and MacGregor; Ms.
Remy; Mr. Stewart.
Attorney Myer Singer, representing applicant, referred to letter to Board from Mr.
Richard J. O'Hearn, S.E.E. Consultants, dated January 4, 2002, on parking
requirements. Letter asserts that parking is adequate for proposed use.
Board members questioned calculations for eighty-three (83) parking spaces and
accuracy of 1986 plans. Presence of dumpster and other objects behind building
and sidewalk in front of building would seem to preclude significant number of
parking spaces. Site also lacks sidewalks in the rear and on sides of building, per
1986 plan.
Attorney Singer, having just been retained by applicant, wished he could add
more detail to application. He believes he could do so if Board were to agree to
continue case once again.
Mr. MacGregor recalled that parking question was raised at January meeting.
Further, applicant couldn't state exactly what was on site. "We need an 'As Built'
plan."
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Mr. Jackson wanted to know if Luke . . . "were really serious about this plan,"
adding that applicant had failed to appear previously and was not prepared for
this meeting.
Mr. MacGregor noted three (3) apartments on a site designed as-retail business
and questioned adequacy of septic system. Ms. Remy wanted assurance that
proposal was as stated for a coffee shop and bakery, and Mr. Singer replied in
the affirmative.
Mr. Stewart asked if applicant were proceeding with the DPRC (Development
Plan Review Committee) and Planning Board. Mr. Singer replied in the
affirmative. When asked "When?" by Chairman Freeman, Mr. Singer stated
intention to proceed in April, first to the DPRC, and that he would file right away.
Mr. Thibodeau said that withdrawal of the application was more in order than a
continuance in light of all of the issues and procedures still ahead. Chairman
Freeman also recommended withdrawal so applicant could take case to other
board and committee first.
r Motion by Mr. Stewart to allow Luke Brewster Realty Trust to withdraw without
a prejudice, 2nd by Mr. MacGregor, Board all in favor.
02-01: Ronald & Christie Bassett, 21 Boulder Road, Map 26, Lot 34 -
Request for a special permit under the Brewster Zoning By-law, Chap.
179, Sec. 179-16, Table 2, Note 14 - to finish an area above the garage
to include a mother-in-law apartment.
Hearing this case were Chairman Freeman; Messrs. Jackson, Kennedy,
MacGregor, and Thibodeau.
Mr. Bassett, accompanied by builder Bruce Hutton, stated that proposed
apartment would allow couple to have mother-in-law nearby. Plans include
bedroom, bath and shower, living room, and kitchenette, for a total of 520 sq. ft.
Mr. and Mrs. Bassett live in main house.
Chairman Freeman asked about access to apartment from main house and
outside. Mr. Jackson asked about number of residents (2) and adequacy of
septic system. Mr. Hutton stated four (4) bedrooms are allowed by Board of
Health with two (2) bedrooms currently in main house and one (1) bedroom
proposed in apartment.
Mr. Thibodeau, referring to January 1999 plan, asked if 520 sq. ft. "future studio
room" had become proposed apartment. Mr. Bassett replied in affirmative.
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Mr. Bassett stated adjacent driveway belonged to neighbor and that it exited on
Rte. 137.
Chairman Freeman opened case to public inquiry. Abutter Tom Burroughs
thought project was okay if-applicant does-what-is proposed. It is a large-house
on a small lot. Mr. Burroughs would like to see a vegetation screen. Mr. Bassett
said he would continue a line of pine trees or arborvitae along east side of
property. Board believed that both owners could work out this issue.
Mr. Thibodeau believed special permit should stipulate tree screen. It was
decided that applicant will plant a single row of six (6) foot tall arborvitae spaced
ten (10) feet apart along east side of property. Mr. Bassett stated intention to
undergo considerable expense with landscaping.
Motion made to close discussion to public input, seconded, Board all in favor.
Chairman Freeman asked if any Board members had comments: Messrs.
Jackson, Kennedy, MacGregor, and Thibodeau voiced support.
Mr. Jackson made motion to allow the accessory apartment in case #02-01 with
conditions that kitchenette stove would be removed if the permitted family use
ended and that a satisfactory tree screen would be in place, 2nd by Mr. Kennedy,
Board all in favor.
02-02: Donald & Daphne Marino, 12 Red Fawn Road, Map 28, Lot 10-
109. Request for special permit under the Brewster Zoning By-Law,
Chap. 179, Sec. 179-11, Table 1, Use Regulations, Residential (3.1) - to
allow an accessory apartment.
Hearing this case were Chairman Freeman, Messrs. Jackson, Kennedy,
MacGregor, and Thibodeau.
Mr. Marino had recently applied for a building permit for a mud room and was
told by building inspector that he had an illegal accessory apartment. He is
hoping to clear this up. He presented sale document from purchase of the
property in 1992, which states, "in-law apartment over 2-car garage."
The garage is newer than the house, which now has two (2) residents. It has
three (3) bedrooms and two (2) baths. Accessory apartment over the garage
has a bedroom and bath.
Mr. Jackson asked if breezeway, when converted to mudroom, will make
garage/apartment and main house into "essentially one building." Reply in
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affirmative. Door to garage already exists from proposed farmer's porch. There
will be access to apartment through a new door to garage.
Mr. MacGregor asked if building department will deal with issue of two (2) means
of egress from apartment, and Chairman Freeman replied in affirmative. ZBA
decision will be predicated on building department signing off on required
egress.
Chairman Freeman opened discussion to public. Abutter Mrs. Laura Goldsmith
asked if accessory apartment use would continue if house were sold. She
wouldn't like a two-family house there. Board replied that future purchasers
would have to demonstrate a family member or caregiver as occupants of the
apartment in order for special permit to remain in effect.
Motion made to close public input, seconded, Board all in favor.
Chairman Freeman asked for Board comments. Mr. MacGregor hoped Marinos
understood their pledge to use structure only as permitted. Mr. Jackson wanted
conditions of covered breezeway and means of egress to be understood.
Chairman Freeman, Messrs. Kennedy and Thibodeau concurred.
Mr. Jackson moved to approve Case #02-02 with provisos of covered breezeway
and apartment egress as approved by Building Department, 2nd by Mr.
Thibodeau, Board all in favor.
02-03: William E. Franze, Jr., and Susan C. Franze, 121 Swamp Road,
Map 18, Lot 24-6-6. Request for variance under the Brewster Zoning
By-Law Art. X, Section 179-52(A&B), to seek variance from minimum
side yard set-back contained in Table 2, Area Regulations, to add onto
the house a garage, mudroom, and covered porch, and to expand an
existing dining room on existing single-family dwelling.
Members hearing this petition: Chairman Freeman; Messrs. Harrison and
Jackson; Ms. Remy; Mr. Stewart.
Attorney George Cavanaugh, representing applicants, described property size of
64,000 sq. ft., including approx. 33,333 sq. ft. of wetlands. Applicants own lots
5 and 6 with an apartment on lot 5 and main house on lot 6. They are asking for
a two (2) foot variance on sideline setback. Proposed addition will reach only
twenty-three (23) feet of setback. All other possible options of construction
would place structure(s) too close to wetlands.
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Applicants propose to construct garage, extend dining room, add mudroom, and
install covered porch. They request variance due to soil conditions and
topography of lot. There are no nearby abutters.
Chairman Freeman asked-for questions from-Board. -Ms.-Remy asked if It were
just the northeast corner that needed the two (2) foot variance. Reply in
affirmative.
Chairman Freeman believed that farmer's porch would need a separate special
permit. Mr. Cavanaugh stated applicants only sought variance for one corner of
proposed garage and believed that they needed only a variance to accommodate
the proposed changes.
Chairman Freeman noted separation of lots in 1986 per ANR plan. Applicants
didn't have enough upland to meet requirements then. Mr. Harrison commented
that applicants couldn't have two (2) dwellings on same lot, so they couldn't
combine lots. Chairman Freeman reported that prior barn on lot 5 was not
residence in 1991 and that house on lot 6 was built before ANR plan. Mr.
Cavanaugh stated that previous owners (Dugans) had split the property. Lot 6
was purchased in 1987, lot 5 in 1990. Building permit for the rental property
renovation of the barn on lot 5 was issued in 1991. The Franzes began renting
in 1992.
Board asked if building permit could have been issued on non-conforming lots
without ZBA approval, i.e., without special permit. Response that six-year
statute of limitations has long expired. To Mr. Jackson's similar question, Mr.
Cavanaugh agreed that special permit or variance would be needed today, as
then.
Ms. Remy inquired about storage space upstairs and septic system. Mr.
Cavanaugh answered that new storage exists. There are no plans for new
bedrooms; two (2) sons in process of moving out. Septic system will be new and
is on plan. It will need variance from Board of Health and is based on three (3)
bedroom structure with 330 gpd. capacity.
Chairman Freeman noted that applicants withdrew request without prejudice in
April 2001 in order to research procedure due to the town counsel's opinion at
that meeting that ZBA lacked authority to eliminate lot lines. Mr. Freeman also
noted that sand trap would not be a use variance, but was under Planning Board
purview.
Mr. Jackson wondered if variance need could be eliminated, considering lot
dimensions of twenty-three (23) feet on east and twenty-nine (29) feet on south.
Reply that engineer looked at plans and couldn't eliminate variance need.
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Chairman Freeman wondered if moving garage to northwest side would satisfy
setback requirements. Mr. Cavanaugh agreed, but in that case, major structural
changes would be required at the rear of the existing house.
Chairman-Freeman asked counsel to describe current-"walk-out" parts of-house.
Stairs from basement below ground level. Making changes would create
hardship for petitioners.
Chairman Freeman omitted request for public input as no one aside from Mr.
Cavanaugh was present.
Opening Board members' comments, Chairman Freeman pointed to 1986 plans
as source of Franzes' hardship. Counsel Cavanaugh believed that Town should
not have signed Dugans' (previous owners') plans, because property didn't meet
zoning requirements. Property was sold to Franzes the next year. No
knowledge of existing house then. Lot 5 sold for $75,000 in 1990.
Mr. Jackson believed that problem was created when barn was converted into
dwelling. Previous owners created an apartment on a non-conforming lot.
Franzes did nothing wrong when applying for permit in 1991. Mr. Harrison
stated that there are two separate lots now and no one knew anything better in
1986.
Ms. Remy wondered if there were sufficient frontage on Swamp Rd. side of
property to solve setback problem.
Mr. Harrsion believed that Board shouldn't punish Franzes for something done in
past. Statute of limitations has passed. It's only a matter of 16-20 sq. ft.
Ms. Remy examined plans further, which indicated that Franzes needed more
storage space.
Ms. McInerney (not sitting on this case) believed that, rather than demonstrating
a hardship, applicants were deriving income from the apartment. Now there
were other needs, and applicants were expressing what amounts to self-imposed
hardship. Mr. Jackson couldn't see case as hardship, also, and believed there
were other ways of completing additions. Result of these plans is "massive
increase" in size of house.
Ms. Remy said there was an indication that everybody failed all along
[throughout history of property development]. "It would be capricious [of the
Board] not to grant this [variance],." Mr. Harrison believed applicants played by
the rules, and everything was done in good faith.
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Mr. Stewart recalled a firm consensus on variances at a recent zoning by-law
seminar in Town Hall. He had no problem with applicants' first and third points,
but questioned if there really were a hardship. Chairman Freeman
acknowledged past errors in decisions regarding the property and noted that,
due to the proximity of extensive wetlands and the closeness of the structures,
little buildable space existed. Could the garage be slid two (2) feet? Couldn't
get the car in then. He would reluctantly go along with the variance. Mr.
Jackson agreed.
Mr. Harrison moved to approve variance on Case #02-03 based on small area
(20 sq. ft.) involved, restriction of buildable space by wetlands, no alternative to
septic system placement, no detriment to neighborhood, and that request meets
intent of by-law. Seconded by Ms. Remy, Board all in favor.
On other business, Chairman Freeman noted "40B" cases/issues were coming
up. Petitioner(s) were requesting relaxation of accessory [structures]
regulations. He has looked at 40B petition for Town Meeting, which will change
zoning to allow single and double dwellings on 15,000 sq. ft. lots. Structures
would not have to be attached and agreement would hold for fifteen (15) years.
Motion made to adjourn at 9:30 P.M., seconded, Board all in favor.
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BREWSTER TOWN CLERK
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