HomeMy Public PortalAboutZoning Board of Appeals -- 2002-04-09 Minutes TOWN OF BREWSTER
PUBLIC MEETING
MINUTES OF ZONING BOARD OF APPEALS
Tuesday, April 9, 2002
7:00 P.M.
Brewster Town Office Building
1. Minutes. Motion made, 2"d, Board all in favor to postpone approval of
minutes of March 12, 2002, to meeting of May 14, 2002.
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 a new and altered,
free-standing sign.
Members hearing case: Messrs. Jackson, Kennedy; Ms. McInerney; Mr.
Thibodeau.
Appearing with Mr. Sad was Joseph Reese, sign maker, who presented to the
Board a color photo of the new sign with the same dimensions as the old one.
Chairman Freeman asked for questions from Board members. Mr. Thibodeau
asked Mr. Sad if the building inspector had said that Mr. Sad had to get approval
from the Board. Reply in affirmative. Mr. Sad believed the building inspector
had said the sign's style was okay, but it was too large. Mr. Thibodeau wanted
to know how much larger. Mr. Sad replied that sign was to be the same size,
but with a new look. Mr. Thibodeau wanted to know if the current sign was
larger than now allowed. Mr. Sad replied that it was up to him, i.e., "personal
preference."
Mr. Kennedy asked how old the current sign was. Reply -- ten (10) years.
Ms. Remy asked if the new sign was to be the same height. Reply in affirmative.
She noted that the shape was to be oval rather than a trapezoid. Mr. Sad stated
that he wanted a "new look."
Chairman Freeman asked if the proposed sign was 58 sq. ft. Reply that new
sign would be same size as old one.
Ms. McInerney referred to the letter from Building Commissioner Thyng to Mr.
Sad, stating that the same size sign could be erected. Mr. Sad said that the
Historice District Commission wanted the ZBA to approve it first.
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Ms. Remy wanted to verify if Mr. Sad could keep the sign he has now. Chairman
Freeman replied that the special permit could specify the same size sign. Mr.
Kennedy asked if a smaller sign would have an adverse effect on Mr. Sad's
business. Reply in affirmative.
Mr. Thibodeau wanted to know the square footage of the top part of the sign.
Ms. Remy stated the main panel was four (4) x eight (8) feet. Mr. Thibodeau
believed there were two options: (1) Leave old sign there (2) Refresh the top
part. Ms. Remy calculated thirty-two (32) square feet on the top of the sign.
Chairman Freeman opened disucussion to public. No speakers responded.
Motion to close public input by Mr. Kennedy, 2"d Mr. MacGregor, Board all in
favor.
Chairman Freeman requested opinions from the Board. Mr. Kennedy had no
opposition to the proposed sign. The current sign has been there a long time.
The new one was more attractive. There was no detriment to the public good
under Sec. 179-24 (B).
Mr. MacGregor had no opposition either. The current sign is pre-existing, non-
conforming. He wondered if the intent of the special permit is to make the sign
more conforming and wished the proposed sign had been more in tone with
other signs in the area.
Mr. Thibodeau liked the new sign, although it would be in opposition with the
Town's new sign code. It would be detrimental if it were against the sign code.
There would be no room for compromise with the new code.
Ms. Remy agreed that sign was pre-existing, non-conforming. She would like to
see a smaller sign. The older one has been there a long time, and the new
design does suit the by-law.
Mr. Jackson was generally in favor. The new sign would be an improvement.
Mr. Kennedy supported Mr. Thibodeau's comments, but said the Town Meeting
was also right under Sec. 179-25 (B). The ZBA should allow the new sign.
02-06: Continuance of 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.
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Members hearing case: Chairman Freeman; Messrs. Jackson, Kennedy,
MacGregor; Ms. McInerney,
Ms. Julie Trzcinski appeared with her attorney Myer Singer. Mr. Singer referred
to the supplemental information he had sent to Board members hearing the
case. It consists of the number of buildings and their locations on the plans.
The second page of the plans shows the balance of the property and information
on the septic system. He also presented to the Board members photographs of
the buildings. There is a numbered key to the buildings on the second page of
the plans.
Mr. Singer believed the main issue in this case was the basic use of the property,
i.e., agricultural use. Under agricultural use, property with a minimum of five (5)
acres would be exempted from local regulations. The Town by-law agrees with
State law in this regard. If the proposed "bed-and-barn" use were unrelated to
the agricultural use, such use would be prohibited. But the main property use is
agricultural.
Mr. Singer reiterated the conditions that would be agreed to if a special permit
were issued by the Board: (1) Seasonal use from April 1st to November 3V' for
the bed and barn operation; (2) Tenants would be limited to transient guests
with their horses and/or equestrian students; (3) Tenants would be limited to a
four (4) week maximum occupancy; (4) Cabins would not be sold separately for
condo or other rental use.
Chairman Freeman asked for questions from the Board. Ms. McInerney asked
for some elaboration on the educational aspect. Ms. Trzcinski summarized her
qualifications: licensed riding instructor, hot walker, race horse trainer,
therapeutic equestrian instructor to handicapped children.
Mr. Jackson asked if one needed a special permit or a variance under the
proposed agricultural use. Mr. Singer referred to Building Inspector Staley's
letter which required a special permit for a bed-and-barn operation. He stated
that Ms Trzcinski will take relief from the Board under any conditions. Mr.
Jackson believed that the Board was faced with a difficult situation.
Chairman Freeman suggested that the Board could overturn the building
inspector's decision. Mr. MacGregor asserted that if a special permit were
issued, the Board would lose the opportunity to place conditions on the use.
"What happens without using horses?" Mr. Singer replied that without horses,
there would be no agricultural use.
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Mr. MacGregor wanted to look at restrictions on the use of the buildings. Mr.
Singer replied that there would be no objection to requiring all residents to be
involved in the agricultural use. Chairman Freeman stated that any change of
use would change the residents' status.
Chairman Freeman, referring to the seasonal use, asked what happened with the
heat and plumbing. Ms. Trzcinski said the pipes are drained for the winter.
Mr. MacGregor asked about marketing documents for potential students. Ms.
Trzcinski replied that they were in progress.
Mr. Kennedy asked how many habitable houses were allowed on a rural
residential lot. Mr. Singer stated that with twice the normal lot area one could
have a second dwelling. With two (2) eight acre lots, up to four (4) dwellings
would be allowed. Agricultural use allows three (3) dwellings.
Mr. Kennedy asked why there was a number of dwellings under agricultural use.
Mr. Singer replied that law doesn't say what agricultural use is. Perhaps it could
eliminate produce stands. Any part of agricultural use is permitted. There is
nothing in the by-law about agricultural use. A riding school on Martha's
Vineyard was exempt from local regulation. Agricultural use includes keeping
and raising horses.
Mr. Kennedy asked about cabins and conditions of use. Mr. Singer said only four
(4) cabins were to be used. Mr. MacGregor, referring to plans, stated that five
(5) cabins were to be used. Reply in affirmative.
Mr. Robert Perry, engineer, reported to the Board that the septic systems were in
fine shape.
Mr. Kennedy asked about possible recreational uses? Was it a problem? Mr.
Singer wanted to know if the Board wanted a condition on the special permit or
if it was okay. Chairman Freeman referred to Sec. 179-11 (pp. 21-22) as the
basis for a special permit. Mr. Singer noted item 20 on p. 23, also.
Chairman Freeman asked if the Board had more questions. He asked Mr. Singer
if the cabins could be divested of kitchen facilities if the riding school ceased
operation. Mr. Singer thought it would be an onerous condition. Mr. Freeman
asked if notification of such a change could be made. Mr. Singer replied in
affirmative.
Mr. Singer noted that the information submitted to the Board last month listed
twelve (12) points of the applicable by-law, and that ZBA approval of a special
permit was okay.
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Ms. McInerney wanted to know how many horses were on the propety. Reply:
6 horses, 1 pony.
Discussion was opened to public. Mr. Leo Cacunas (sp?), Mass. Farm Bureau,
rose in support of the petitioner and urgerd the Board to approve the request
without conditions. He asserted that other agricultural use without horses was
okay. With non-agricultural use, seasonal cabins would be out. This is an
opportunity to preserve open space. It would be no detriment at all to the
community. There is no need for a special permit or a variance. It would be a
great way to help preserve Cape Cod.
Mr. Jackson asked Mr. Singer if it were okay to tie in conditions. What would
you recommend? Would there be too much detail? Could seasonal use end in
late October? Mr. Kennedy wanted to know if the submitted plans were binding.
He believed one could have twenty (20) cabins if the property were approved for
agricultural use.
Mr. MacGregor asked about barn space for horses. Answer: 10' x 10' per horse.
There are also flooring rquirements.
Motion made, 2"d, and approved to overturn the building inspector's decision
and allow agricultural use under 179-11 (p. 23) and to grant a special permit for
cabin use with the following conditions: Seasonal use from April ist-November
30th; Guests restricted to horse owners and equestrian students; Maximum stay
of four (4) weeks; Agricultural use runs with the operator and/or the cabins are
prohibited from purely rental use or conversion to condos
02-08: Stephen B. Brown, 2628 Main St., Map 15, Lot 113-2.
Request for special permit under Brewster Zoning By-law, Sec. 179-5 (E), to
change zoning of a portion of the property from RM (Residential Medium
Density) to V-B (Village Business) and to designate it as V-B zoning in its
entirety.
Members hearing this case: Chairman Freeman, Messrs. Jackson, MacGregor,
Stewart, Thibodeau.
Mr. Brown described the property briefly. He purchased it in 1973. There is a
seventy (70) ft. corner(?) on the east side, four hundred (400) ft. length on the
east and one hundred fifty (150) on the west side, a total(?) of four hundred
(400) ft. on each side. He is asking for a special pemit to carry V-B zoning into
the other zone.
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The dual zoning of the property creates problems. The line between the V-B and
RM zones runs through the western third of the building. Was an auto parts
business okay at one time? There is parking in the residential zone for the
former auto store. There are roof signs identifying multiple business uses on one
property since circa 1985. The Historic District Commission (HDC) approved the
signs. Mr. Brown can't put an Espresso sign up because it would be in the
residential zone portion of the property.
A lean-to greenhouse in the back is in disrepair, and Mr. Brown wants to rebuild
it. The seller of vegetarian food could cook in the same building if the special
permit were approved, instead of cooking in another building and carrying the
food into the V-B zone for sale. Placing dining tables for customers requires a
special permit.
Mr. Brown needs to harmonize the zoning so a potential buyer knows what he
can use the property for. He hopes to ultimately use the property for growing
organic vegetables and herbs and as a clinic for selling these commodities along
with vegetarian food. He is looking for a use that will generate income and be
amenable to the Town.
Chairman Freeman commented that a C-H zoning can't be considered in the rear
of the property because it is largely wetlands. He asked for questions from
Board members.
Mr. MacGregor asked if the residential portion were non-conforming. Mr. Brown
said he couldn't proceed with development with a frontage of only ninety (90) ft.
Mr. Stewart estimated the size of the property at 11/2 acres. He asked if the
buildings were less than ten (10) feet from the zoning line. He asked what
zoning prevailed on Fat Alice Rd. In response, Chairman Freeman showed Board
members the zoning map of the area.
Chairman Freeman asked for public input. Several abutters rose in opposition to
Mr. Brown's request. Attorney Richard Perry representing Michael Jarvis, 67 and
101 Taylor Lane (also present), said his client was opposed to any more
commercial use of Mr. Brown's property. There is also a twenty-five (25) ft.
teepee in the back that is not permitted. The proper remedy is to ask for a
redrawn V-B line with no use to extend into the RM zone.
Traffic in this area is the worst in town. If the 60,000 sq. ft. parcel becomes V-B,
that would allow four (4) more commercial units. The driveway to the True-
Value hardware store would serve four (4) more businessmen. There shouldn't
be a blank check for Mr. Brown. Mr. Perry couldn't see any restrictions in the
future if Mr. Brown gets his special permit.
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William Jardin (sp?) referred to his letter to the Board. The land in question is of
no use because there is no frontage on Route 6A. Some frontage might be
borrowed from the V-B zone.
Mr. Thibodeau objected to the "blank check" idea, also. Building Inspector
Staley's letter to Mr. Brown states that use in one district may be extended into
another. He has other steps to do.
Mr. Perry stated that the use has to be specific under Sec. 175-5 (E). Mr. Brown
is asking for a use in the V-B zone to be allowed in the other zone. That's spot
zoning! It is changing the zoning line. Chairman Freeman stated that under
Sec. 179-5, it can be done. Mr. Perry replied that one can change the use and
then read Sec. 179-5 (E). Discussion continued over the wording of the
application and advertised agenda item.
Chairman Freeman ruled that the issue the Board was to consider is to extend
the use from the RM zone into the V-B zone. Mr. Perry stated that the pass-
through of use (re: Sec. 179-5 (e)) was allowed by the Town counsel to save
money and time. Mr. Jarvis referred to a letter from Wilcox, Robb, and
Severinson (sp?).
Chairman Freeman read from a petition opposing Mr. Brown's request. He
affirmed the severe traffic congestion in the area.
Chairman Freeman asked for a motion to close public discussion, 2"d, Board all in
favor.
Chairman Freeman asked for a sense of the Board. Mr. Thibodeau was in favor
of extending the use now. Future Board approvals would be needed as new
needs arose. All use in the V-B zone can be extended in the RM zone. Mr.
MacGregor reiterated that the by-law applies to extending a use. Why isn't this
changing the line? Mr. Thibodeau replied that any issue in this section is based
on a legitimate application of use. Mr. Jackson noted the considerable opposition
to Mr. Brown's request and would be against it.
Mr. Stewart said the item was not advertised right. Sec. 179-5 (E) refers to a
use that may be extended. He would not be in favor without a correct
interpretation.
Mr. Brown asked to address the Board. He and his colleague D. Woods will seek
legal counsel on this matter.
Mr. Perry said that a new application has to come before the Board for a special
permit.
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Mr. Thibodeau wanted to know why the Board couldn't continue to seek opinions
from Town counsel on matters like this one.
Mr. MacGregor made a motion to approve Mr. Brown's request to withdraw
without prejudice, 2nd by Mr. Thibodeau, Board all in favor.
Motion made by Mr. MacGregor or Mr. Thibodeau to allow the applicant to
withdraw without prejudice, 2nd, Board all in favor.
02-09: Diana and Joseph Carty, 42 Konohasset Cartway, Map 41,
Lot 11. Request for special permit under Brewster Zoning By-law, Art. VIII, Sec.
179-25 (B), to renovate and repair accessory garage and shed, build first floor
addition to existing two (2) bedroom house, and add second floor loft space to
same structure. Request for variance under Brewster Zoning By-law, Art. V, Sec.
179-16, Table 2 (Area Regulations), Note 5, to build a twelve (12) foot diameter
gazebo within fifty (50) feet of wetlands.
Motion made to grant applicant's request for a continuance to June 11th, 2nd,
Board all in favor.
02-10: Donald and Jean MacKenzie, 92 Swamp Rd., Map 18, Lot 33.
Request for special permit under Brewster Zoning By-law, Art. V, Sec. 179-25 (B)
and Sec. 179-16, Table 2 (Area Regulations), Note 5, to add a 10' x12' addition
(bathroom) to existing house, to be constructed within fifty (50) feet of
wetlands.
Members hearing case: Messrs. Jackson, Kennedy, MacGregor; Mss. McInerney
and Remy.
George Reilly, builder, representing the MacKenzies, presented the request. The
completed addition would be thirty-seven (37) feet from wetlands. The
Conservation Commission (CC) approved the request as not detrimental to the
area under an SE 9-11-43 order of conditions. The MacKenzies have to build a
new septic system to meet the code. The addition will have a concrete piers
foundation.
Mr. Kennedy wanted to know why Building Comm. Thyng's letter referred to the
need for a variance instead of a special permit. Mr. Jackson noted that the
addition was encroaching farther into the setback. Mr. Kennedy asked if this
addition would have been legal in 1985. Reply in affirmative. Chairman
Freeman stated that a special permit would be okay if the proposed addition is
not encroaching farther than the existing structure.
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Mr. Kennedy said that the house encroaches farther than the proposed addition.
Mr. MacGregor wanted to know the meaning of the dotted line. Reply that the
measurement from the pilings is not the dotted line. This case should be a
variance. Chairman Freeman said that Building Inspector Staley's judgment
should prevail in this, and a special permit should be considered.
Mr. MacGregor wanted to know if the designated wetland was a wetland or a
ditch. Mr. Reilly stated that it was the edge of an old cranberry bog with wetland
vegetation. CC agreed that there was no impact on natural resources.
Chairman Freeman asked for public input. Hearing none, motion was made to
close to public input, 2"d, Board all in favor.
Chairman Freeman asked for Board opinion. Mr. Kennedy thought the case was
a variance. Mr. Jackson believed it was impossible to tell. Ms. Remy said the
building department has the burden to declare what category cases fall into. A
"special permit" is what they said. Mr. Kennedy amended his remark to go along
with the building department's judgment. Ms. McInerney agreed that it should
be decided as a special permit.
Mr. Kennedy wanted to know how far the addition was from the bog. Mr. Reilly -
- thirty-seven (37) feet. The dwelling is less than that. The bog is thirty-two
(32) feet from the dwelling, five (5) feet farther back.
Chairman Freeman opened discussion to public input. Hearing none, motion
made to close public discussion, 2"d, Board all in favor.
Board discussion continued. Ms. Remy asked if a special permit were more
detrimental than a variance. Mr. MacGregor said the Board should rely on the
CC, since they approved it. Ms. Remy affirmed that the Board has relied on the
CC in the past.
Motion made by Ms. Remy, pursuant to CC Sec. 9-11-43, 179-25 (B), and 179-16
. . . , to approve special permit, 2"d by Mr. Kennedy, Board all in favor.
02-11: Luke Brewster Realty Trust, 15 Lower Road, Map 20, Lot 39.
Request for special permit under Brewster Zoning By-law, Chap. 179, Art. IV,
Sec. 179-11, Table 1, (Use Regulations, Retail and Service #3) to allow a
coffee/donut/baked goods shop in the Village Business District.
Motion made, 2"d, Board all in favor, to allow applicant to Withdraw
without prejudice, with a reminder to the presenter that all other Town boards or
committees must have approved applicant's plans prior to returning to the ZBA.
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02-12: Christine and Sean McCarthy, 84 Byfield Cartway, Map 3, Lot
82. Request for special permit under Brewster Zoning By-law, Chap. 179, Art.
VIII, Sec. 179-25 (B), to remove an existing three (3) bedroom dwelling and
construct a four (4) bedroom dwelling.
Members hearing case: Chairman Freeman; Messr. Jackson, MacGregor, and
Stewart; Ms. McInerney; Mr. Thibodeau.
Paul Murphy, builder, represented the McCarthys. He stated they wanted to
remove an old dwelling and construct a four-bedroom dwelling within one inch of
the setback on the sides.
Discussion shifted to fire department access standards. The road in front of the
property is not accessible. Mr. Phillip Carnovan (sp?), 92 Byfield Cartway (on the
east side of the McCarthy property), stated that the private road is more open,
and a hydrant is nearby. Access can be gained through Cemetery Rd. and Leeds
(sp?) Lane.
Mr. Murphy said that the property was a non-conforming lot and had to come
before the Board. The size is 22,000 sq. ft. vs. the minimum 60,000 sq. ft.
Discussion was opened to public input. Mr. John Ryan, 68 Byfield Cartway (to
the west of the McCarthy property) endorsed the request enthusiastically. He
said the fire department had complained about branches growing into the
roladway 3-4 years ago, and they have been cut back every year since. That
opened up Robins Hill Rd. to the properties.
Request for closing public input made, 2nd, Board all in favor.
Mr. MacGregor noted that this was the last house to be upgraded. It is a nice
addition. The fire department access is a non-issue for this Board. There are
plenty of hydrants there. No conditions should be place upon approval. Mr.
Jackson agreed that it was a step forward for the area and was in favor. Mr.
Stewart agreed. Ms. McInerney saw no problem with it.
Motion made by Mr. MacGregor to approve special permit for case #02-12, 2nd
by Mr. Stewart, Board all in favor.
Motion made to adjourn at 10:40 P.M., 2nd, Board all in favor.
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