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
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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
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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.
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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.
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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.
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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
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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
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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.
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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.
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