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HomeMy Public PortalAboutZoning Board of Appeals -- 2002-03-12 Minutes TOWN OF BREWSTER PUBLIC MEETING MINUTES OF ZONING BOARD OF APPEALS Tuesday, March 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, February 12, 2002, were approved as corrected. Chairman Freeman gave a brief history of the Development Plan Review Committee (DPRC) from its inception at the 1990 Town Meeting. Building Commissioner Thyng is the chairman. It is an informational source, not a permitting agency, for persons seeking guidance with development plans. The Board of Appeals should name a representative to it. It was moved, seconded, and passed that Chairman Freeman be the ZBA representative to the DPRC. Chairman Freeman reported that he would not be present for the next DPRC meeting on Tuesday, March 19, 2002. Mr. Stewart agreed to attend in his place. Chairman Freeman reported a final pre-trial conference, regarding a wetlands issue, in the case of O'connor vs. Brewster ZBA on April 3, 2002, at 2:00 P.M. 01-58: Continuance of Nasir Sad, 2771 Main St., Map 14, Lot 45. Request for special permit under Brewster Zoning By-Law, Chap. 179, Art. VIII, Sec. 179- 25(B), to replace existing, free-standing sign with new and altered, free- standing sign. Mr. Sad was unable to attend. Chairman Freeman reported that a waiver/request for continuance had been signed by Mr. Sad's representative, Sadeqat Zehid, and asked for a motion to continue the petition to the April meeting. Motion made, seconded, Board all in favor. 02-04: Robert E. Libby, Old King's Highway (Route 6A), Map 21, Lot 15. Request for special permit under Brewster Zoning By-Law, Sec. 179-5(E), to build single-family dwelling on 60,000 sq. ft. lot lacking sufficient frontage and/or request for variance from frontage requirements for RM zoning district under Art. V, Secs. 179-15 & 179-16. Mr. Libby and his attorney Roger O'Day distributed copies of a written proposal to Board members. Mr. O'Day described the location of the proposed development, i.e., on the north side of Route 6A, adjacent to the Sprint Spectrum property. He referred to the 1 1970 site development plan, showing the proposed building and septic system, and cited zoning by-law 179-26B (a "grandfather" clause), adopted June 25, 1978, which then required a fifty (50) frontage. The current requirement is one hundred fifty (150) feet. The variance request is based on the shape and conditions of this 2.13 acre lot, of which 86,300 sq. ft. is buildable upland. Literal enforcement of the frontage requirement would create a substantial hardship for the applicant. Mr. Libby purchased the lot in 1970, contingent on its being buildable. The Town has assessed it as a buildable lot since then. If the Board were to grant the variance, there would be no resulting detriment to the public good and no diminishment of the by-law. It is a dimensional variance only. The lot is bisected by a zoning boundary line: Residential Rural (RR) in the northern portion and Residential Medium (RM) in the southern portion. The proposed building and septic system are within the RM zone. No development is intended in the approx. 100,000 sq. ft. RR portion. Along Route 6A, there is primarily RM zoning. Mr. O'Day cited zoning by-law 179-5E, that allows a permitted use in one portion of a zone-divided lot to be extended to the other portion. The proposed building is in harmony with the Town's comprehensive plan. The one hundred fifty (150) long panhandle section includes a twenty-five (25) foot setback from the property edge and a fifty (50) foot buffer zone from wetlands on the east side. There is a one hundred (100) foot buffer zone from wetlands on the north side. The septic system meets state and local requirements. Fire codes are met. Finally, this lot is larger than most in the RM zone. Chairman Freeman asked for questions from the Board. Mr. Thibodeau, referring to a structure on the front lot, asked if the side setback requirements of twenty-five (25) feet were met. Reply in affirmative. Mr. Harrison asked the petitioner if abutters had any comments. Mr. Libby said he had spoken with one person, who appeared agreeable to his plans. Mr. Kennedy asked if the lot were being sold to be built upon. Mr. Libby replied in affirmative. Chairman Freeman asked if the petitioner owned the lot to the west. Reply in affirmative. Mr. Libby said the lot to the west was also zone-bisected, but was shorter and wider than the lot being developed. Mr. O'Day showed Board members maps of adjacent lots. Mr. O'Day said the square footage of the RM and RR portions of the lot were about equal. The adjacent lot has an eighty-six (86) foot frontage and no structures. Motion made, seconded, passed to open petition to public input. Abutter James Henderson, Lot 391, had no problem with the house and asked why the frontage 2 minimums were different from lot to lot. Board responded that it depended on the year the property was sub-divided. Mr. Thibodeau asked if access to Mr. Henderson's property were adjacent to Mr. Libby's lot. Reply in the negative. Motion made, seconded, and passed to close hearing to public input. Board members were asked to comment. Mr. Kennedy had no problem with the variance, and the special permit was okay, provided any buyer was informed that the RR section was not buildable. Chairman Freeman and Mr. Kennedy discussed the question of building from the RM zone into the RR zone. Mr. O'Day responded that the petitioner had no intention to build in the RR zone. Mr. Thibodeau had no problem with building from the RM section into the RR. The shape of the lot justifies the need for a variance, and the intent of the by-law is not being violated. Approving the special permit would not hurt anyone. Mr. Jackson agreed that the variance criteria are well met. Mr MacGregor also agreed. Motion made by Mr. Harrison to grant a special permit under section 175(E), seconded by Mr. Thibodeau, Board all in favor. Motion made by Mr. Jackson to grant a variance allowing a forty-four (44) ft. frontage under section 179.15 & 16, , seconded by Mr. Thibodeau, Board all in favor. 02-05: Latham Centers, Inc., 1646 Route 6A, Map 24, Lot 21. Request for special permit under Brewster Zoning By-Law, Art. VIII, Sec. 179-25(B), to replace existing sign with larger one to be installed on same post and bracket and/or request for variance under Art. X, Sec. 179-52(A&B), to permit larger sign. Members hearing case: Chairman Freeman, Messrs. Harrison, Kennedy, MacGregor, and Thibodeau. Latham Centers Director Carol Sullivan, presenting petition, said the sign was now in two sections. The new sign will be one solid piece, which covers about the same area as the old sign. Mr. MacGregor asked why the name "Latham" was on the sign twice. Reply that there were two entities: "Latham Centers, Inc." and "Latham School." Mr. MacGregor thought there was more information on the new sign and that the existing sign seemed large enough. Chairman Freeman reminded the Board that the Historic District Commission (HDC) had approved the existing sign, and that any variance request for a larger sign has to meet all four criteria. Mr. Harrison suggested there was some redundancy in having the street number repeated on the new sign. 3 Chairman Freeman noted that a donor was subsidizing the cost of the new sign. Mr. Thibodeau asked if Ms. Sullivan would have made the petition without a donor. Ms. Sullivan replied that she would have gone ahead, anyway. Mr. Thibodeau thought the proposed sign was more like advertising, but was more concerned with the sign's size. The Board continued a discussion about various names and reasons for the proposed change. Chairman Freeman opened the discussion to public input. There was no response. Discussion closed to public input: Moved, 2"d, all in favor. Mr. Kennedy asked if the property was in RM district. Reply in affirmative. Mr. Jackson said he had a problem with the first variance criterion, since it was difficult to grant the petition when there was only a one-third (1/3) sq. ft. difference in area between the current and proposed signs. Mr. Harrison said he would not vote to approve the petition. If there were a safety issue, the donor could replace the current sign with one of the same size. Mr. Kennedy agreed with Mr. Jackson that there was no real difference in size. There were no topography or soil issues in this petition. He had no quarrel with what was on the sign. Mr. MacGregor questioned the calculation of only a two inch (2") increase in size. The new sign appeared to be much larger. Mr. Thibodeau agreed that something was not right about the dimensions. There was no hardship in a replacement sign of the same size. Chairman Freeman also believed the first criterion was not met. In fact, two of the four criteria were not met. The special permit request changed the nature and size (31" x 25") of the sign. Mr. Jackson moved to deny the request for a variance to Latham Centers, based on section 179-52 (A&B), 2"d by Mr. Thibodeau, Board all in favor. A subsequent motion was made to grant Latham Centers a special permit with sign dimensions no larger than the existing sign and on the same post and bracket, based on section 179-25 (B) and matching the HDC approval, 2"d, Board all in favor. 02-06: Julie R. Trzcinski, 697 Freemans Way, Map 46, Lot 9. Appeal decision of zoning agent and request for special permit and/or variance under Brewster Zoning By-Law, Art. IV, Sec. 179-11 (Table 1, "Retail & Service," Item 20) to have recreational facility for horseback riding and overnight guests and request for special permit and/or variance under Art. X, Sec. 179-52, to allow multi-unit rental dwellings on one lot. Members hearing this case were Chairman Freeman, Mr. MacGregor, Mr. Jackson, Mr. Kennedy, Ms. McInerney. 4 Ms. Trzcinski and her attorney Myer Singer presented the petition. She is the principal resident of this property and has a purchase-and-sale agreement with the owner. She is requesting a special permit to operate a bed-and-barn, seasonal riding school. The property totals approx. fifteen (15) acres. It has fourteen (14) structures, including a house, two (2) cabins, and a mess hall with a commercial kitchen. It borders on Nickerson State Forest. The driveway entrance from Freemans Way will remain in the same configuration with an additional driveway to be shown in the final plans. Current plans show the locations of water wells and septic systems. Ms. Trzcinski is a licensed equestrian instructor with a degree from the Univ. of Massachusetts. During her internship, she developed a specialty in the training of handicapped riders. She also qualifies as an in-home residential counselor. She has been living on the property for four (4) years and serves on the Town's Open Space committee. There are currently seven (7) horses being boarded on the property, as well as various other farm animals. Referring to Building Comm. Thyng's letter, Mr. Singer said the petitioner was applying for a special permit for the riding school operation and applying for a variance for the use of four (4) cabins and the commercial kitchen. Ms. Trzcinski is appealing the building inspector's decision; the intended use is within the permitted agricultural operations in the zoning laws and is, therefore, already allowed. A special permit should be granted because a riding school is an agricultural use. Mr. Singer explained how the proposal met the thirteen (13) criteria for a special permit, including the riding school's consistency with a comprehensive plan, the natural screening of any activities from Freemans Way and Nickerson State Forest, the suitability of the acreage, adequate access and parking, and adequate septic systems and water wells. Ground water quality is maintained with responsible composting of solid wastes and their regular removal. With the inclusion of riding instruction, the operation is an approved agricultural use. Regarding the need for a variance in the building commissioner's letter, cooking facilities are maintained on one lot. There are only two dwellings involved. Two cabins will be finished off with apartment-sized refrigerators and cooking facilities. There is no detriment to the public good, and the zoning by-law doesn't define recreation or agricultural use. Finally, Mr. Singer referred to a supporting court case (Exhibit 9). He noted that agricultural tourism is a growing trend around the country and that Ms. Trzcinksi has a special interest in equestrian education, based on the principle of the horse and owner as a team. 5 Chairman Freeman asked the Board for comments. Mr. MacGregor said there was a fundamental need for a clear, comprehensive plan for the intended use of the entire property. He noted that four (4) cabins were to be used. The current plans show the building locations but not proposed uses. The Board needs to know how the cabin interiors will be renovated. Ms. Trzcinski said the plans included the three (3) cabins closest to Freemans Way. Chairman Freeman asked if the cabins were in use now and whether permits were in place. Reply in affirmative; one cabin houses a mother and daughter, and another, a maintenance/security person. The first cabin is in disrepair. They have been occupied four (4) years or more. Mr. MacGregor asked if the current situation involved multi-family housing. Mr. Singer said that it was only seasonal use. Mr. MacGregor believed there was a year-round use now. Mr. Singer read from the proposal, "There are fourteen (14) buildings on the property," with no notations in the plans for intended changes or uses. Chairman Freeman asked if there was a septic tank in the clearing between the buildings. Reply in affirmative. He wanted to know the intended uses of the surrounding buildings. Mr. Singer said they would provide the Board with plans identifying each of the buildings and their intended use. Mr. MacGregor asked about annual inspections of the buildings and septic systems. How many dwellings will be covered? Reply that the systems were adequate for more than one hundred (100) people. Mr. Singer said that if the septic systems were not adequate, he would have no objection to a condition of compliance. Discussion continued on current cabin occupancies, the question of approval by the housing department, and assurances from the petitioner of approval by the health department. Bob Perry, Cape Cod Engineering, stated that two (2) septic systems were now in use. The third system is not connected. The North system can serve up to eighteen (18) bedrooms. The West system can handle a five (5) bedroom flow from three (3) buildings. The systems were built in 1987 or 1988 and are working very well. Mr. MacGregor thought there were two designs before the Board. One septic system was disconnected. How many bedrooms can the "front" systems handle? Mr. Perry agreed that the plans only showed existing conditions. Two dwellings with one (1) bedroom each were currently being served by the system with the five (5) bedroom capacity. The Board raised questions about year-round occupancy of the cabins and the main house, whether they had cellars, and the capacity of the septic systems for the intended 6 use. Ms. Trzcinski assumed the dwellings were permitted. Two of them are insulated and sheet-rocked. Income from the riding school/camp operatons will pay the mortgage. Mr. Singer stated that the intended use was independent of the purchase-sale agreement. If the Board were to deny the petition, Ms. Trzcinski could not get out of the agreement. Ms. Trzcinski stated that the intended use could be either an agricultural or a commercial operation. Mr. Singer read from the State general law definition of agricultural use, which included, "keeping of horses as a commercial enterprise . . ." Chairman Freeman referred to zoning by-law, section 179-11, Table 1, Agricultural, and suggested that item 6, p. 22, "Commercial stable . . .," should also be included. This item in an RR district requires a variance. Mr. Jackson agreed, adding that a variance request in this case would have difficulty with criterion #1. Would the existing dining area be used? What is the definition of a "dwelling unit" here? Mr. MacGregor continued the discussion about the number of dwelings and principal vs. accessory structures. Mr. Singer said that the buildings can be defined by their use. Mr. Jackson was again concerned about criteria. Mr. Singer read from the law about structures and hardships inherent with the property. He assured the Board that he was keeping a list of concerns, i.e., septic system adequacy, creation of a table on the plans for proposed uses of structures, and conditions to be met in order to receive Board approval. Mr. Kennedy referred to the second paragraph (on cooking facilities) of Building Comm. Thyng's letter to Ms. Trzcinski as an indication of the way to proceed. Chairman Freeman reiterated the need to define the current uses of the two cabins. Mr. MacGregor noted there were no dimensions on the buildings and no setbacks on one plan. Mr. Kennedy said that a variance consideration was in order and would like to see photographs of the buildings. Mr. MacGregor would like to have some sense of what's on the rest of the property. Mr. Kennedy would like to have an updated septic system plan. Mr. Harrison stated that knowing the uses of the buildings and a proposed development plan might help the Board overturn Building Comm. Thyng's decision regarding agricultural use. Agricultural use is broadly defined. A similar proposal on Martha's Vineyard involved fuel tank installations. Selling produce is another aspect. The court overturned Tisbury's denial of the similar proposal because it was a permitted agricultural use. Chairman Freeman said the petition would require a variance in any case. Mr. Singer asked if Ms. Trzcinski has applied for all three(?). Mr. Kennedy said the Board has to consider the agricultural uses and would need specifications on all aspects of the property. Mr. Singer began to sum up the Board's needs again. Mr. MacGregor, referring 7 to the water wells on the plans, wanted to know if their distance from the stables was adequate. Chairman Freeman noted that the Board of Health would have to certify that aspect. Mr. Kennedy said that the petitioner needed to justify the 3rd permanent dwelling. The petitioner has to ask for it. Mr. Kennedy made a motion to continue case #02-06 to the April 9, 2002, meeting, 2"d by Ms. McInerney, Board all in favor. 02-07: Kaestle Boos Associates, Inc., (for Brewster Fire Dept.), 1657 Main St., Map 24, Lot 13. Request for variance under Brewster Zoning By-Law Art. X, Secs. 179-22 (Table 4), 179-67(D3), and 179-68 (C), for relief from parking lot capacity requirements, landscaped islands, and parking in front of fire dept. building. Members hearing this case were Chairman Freeman, Messr. Harrison and Stewart, Mss. McInerney and Remy. Petition was presented by Mr. Kenneth Costello, Kaestle Boos Assoc., and Brewster Fire Chief Roy Jones. Mr. Costello has been before other Town boards, including the DPRC, with this petition. Soil conditions support the variance request. There are wetlands on the north and west sides of the property. The development was restricted by topography and wetlands. The square footage of the building requires eighty (80) parking spaces. There is existing parking in the front and rear. Two (2) handicapped spaces will be put in the front. Rear parking has been displaced by the building addition and a change in grading to make the equipment bay work. The proposal includes re-striping of the parking lot. The petitioner is requesting a variance on the rear parking only. There is a potential gravel lot on the upland portion. The only other area that could be considered for parking is the recreation area. There is no resulting detriment to the public good from granting this variance. In fact, the general public benefits substantially from upgrading the fire protection facilities. There will be a parking island with plantings. The hedge along Route 6A will remain. The rear parking will not be visible from any adjacent parking area. The fire department's parking needs are vastly different from those of other Town buildings. Fire Comm. Roy said the zoning by-laws did not take into consideration parking needs at the fire station. Chairman Freeman read from the Fire Commissioner's letter supporting the variance request and then asked for questions from the Board. Mr. Stewart said the zoning citations should be sections 179-67 (D) and (E). He asked if Historic District Commission (HDC) and Conservation Commission (CC) approval had been obtained. Reply in affirmative. CC requested the inclusion of a drainage area, which will be done. There was no formal need for action by the CC. 8 Fire Comm. Roy stated that tennis players will use the Council on Aging (COA) parking lot across Route 6A. A few cars are parked behind the fire station building. "We pick up three spaces and lose three spaces in the back." Chairman Freeman stated that the single space in the garage plus the proposed twenty-three (23) spaces would make a total of twenty-four (24) spaces. Ms. McInerney calculated that the addition to the building would have required an additional twenty-four (24) spaces. In response to a question from Board, Fire Comm. Roy stated that some firemen on call drive their personal vehicles directly to the site of a fire. The improved parking out front will be for the firemen on call. The water department also uses the front lot for some parking. Mr. Stewart noted that the variance request also included exemption from parking islands in the back and parking in the front of the building. Chairman Freeman requested a motion to open hearing to public input. No other persons present, Ms. Remy moved to close hearing to public input. Motion made by Ms. Remy to grant variance in Case #02-07, 2"d by Mr. Stewart, Board all in favor. Motion made, 2"d, Board all in favor, to adjourn at 10:20 P.M. 9