HomeMy Public PortalAboutZoning Board of Appeals -- 2003-01-14 Minutes TOWN OF BREWSTER
PUBLIC MEETING
MINUTES OF ZONING BOARD OF APPEALS
Tuesday, January 14, 2003
7:00 P.M
Brewster Town Office Building
Mr. Freeman announced with regret that Mr. Thibodeau had resigned from the
Board. Mr. Stewart said that he will be "sorely missed," and the other members
agreed.
Mr. Jackson moved to approve the minutes of December 12, 2002 , as read, 2nd
by Mr. Nixon, Board all in favor.
02-37. Continuance of Judith and Theodore Brown, 225 Rocky Hill Rd.,
Map 27, Lot 22-1. Request a special permit in appeal of the zoning inspector's
decision under Secs. 8 and 15, Mass. General Law, Chap. 40A, and request a
variance under Brewster Zoning Bylaw, Art. X, Sec. 179-52, to continue the
operation of a landscaping business in an R-L district.
Mr. Brown and his attorney David Woods, Jr, were present. Hearing this case
were Messrs. Freeman, Harrison, Jackson, Lach, and Nixon.
Mr. Woods said that Mr. Brown bought the property in the 1970's. It is
somewhat isolated from other residences in the area. He began work there as
an arborist, and the business grew into landscaping over the years.
Mr. Brown conducts most of his business at his customers' locations. If his
property were located in a Residential-Rural (R-R) zone, it would be legal. There
have been no neighbor complaints, and his business has had no adverse impact
on the neighborhood.
Mr. Brown is not sure where he can move his business but is currently seeking a
lease location in Commerce Park. He has had as many as fifteen (15) employees
and currently employs six or seven (6-7) workers.
The Board asked Mr. Woods to justify a topography hardship. Mr. Woods
described the lot as an R-R lot in an Residential Light (R-L) zone. R-L lots are
typically 40,000 to 60,000 sq. ft. Mr. Brown's home is on his lot.
Mr. Freeman read from Building Inspector Staley's letter that the property was
being used for business purposes and that none of the structures, built more
than ten (10) years ago, had building permits. A 1984 assessor's record shows a
25' x 10' structure. Mr. Freeman asked for documentation of any additions to it.
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Mr. Brown described the building now as approx. 20' x 30', which includes
equipment bays and two (2) offices. A wing was added some time after 1991.
Other wings were added in the 1980's.
In the summer of 2002, he employed seventeen (17) persons and now has three
(3) in the field and one (1) in the office.
The Board returned to the issue of the variance request and wanted to know if
there were any hardships relating to soil conditions. No variance request has
been filed. Mr. Woods' letter of October 31, 2002, pledged to have "field work"
completed, and the application ready for the January 2003 meeting.
The Board asked if Mr. Brown had obeyed Inspector Staley's letter to "cease and
desist" his business operations. Answer in the negative.
Mr. Lach recalled an approx. twenty-year-old ZBA case with a similar issue. The
business owner faced the choice of moving to an industrial zone or asking the
Town to change the zoning. The zoning was changed at a Town Meeting. There
was further discussion regarding time periods for making a decision, scouting
other locations, and limiting the number of Mr. Brown's employees.
Building Commissioner Thyng's memo of November 5, 2002, was read.
Discussion was opened to public input. The following neighbors and abutters
were present and spoke in favor of Mr. Brown and/or his business:
Rick Scanner, 54 Rocky Hill Rd.
Andy McHugh, 163 Rocky Hill Rd.
Angela Mott, 173 Rocky Hill Rd.
Rhoda Bath, Rocky Hill Rd.
Joan Pfeiffer, 18 Rocky Hill Rd.
James and Margery Ritchie,217 Rocky Hill Rd., wrote a letter on November 12,
2002, in opposition to the petition, citing commercial vehicle traffic and adverse
effects on property values.
Motion was made to close discussion to public input, 2"d, Board all in favor.
The Board discussed the variance part of the petition further and agreed that the
application was not complete and that no evidence has so far been presented to
support the petition. There were no building permits for any of the structures,
and the cease-and-desist order has not been obeyed.
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Mr. Lach wanted to continue the case in order to inspect the site. The Town
Assessor's maps are based on flyovers. Building Commissioner Thyng's memo
questioned the use of the statute of limitations as a defense for permitting an
illegal use. The judge in the Somerset, Mass., case of 1991 ruled that a violation
of use in a zoning district was not protected by the statute of limitations. The
applicant has produced nothing since October 2002 to support his application.
Mr. Harrison moved to continue the case until April 8, 2003, so that the applicant
might provide additional information, 2nd by Mr. Lach, Board all in favor.
02-47. James and Paula Lieb, 268 Breakwater Rd., Map 4, Lot 15.
Request a special permit under Brewster Zoning Bylaw, Art. VIII, Sec. 179-25 B,
to replace an existing garage within a wetlands conservancy district. Request a
special permit under Brewster Zoning Bylaw, Art. II, Sec. 179-6 (E), and Art. X,
Sec. 179-51, to replace an existing timber bulkhead and rock revetment in a
wetlands conservancy district with a revetment and stone steps.
Attorney Andrew Singer and Engineer Peter Markunas represented the
petitioners. Hearing this case were Messrs. Freeman, Harrison, Jackson,
MacGregor, and Ms. MacInerney.
Mr. Singer reviewed the application and referred to its companion case #02-50,
James J. Mulligan Revocable Trust, of the same address and lot no. The Liebs
are the proposed purchasers of the property, and the sellers, the Mulligans, must
upgrade the septic system.
A second story is to be added to the garage. There will be no change in the
footprint of the buildings. The accessory building will only be used as bedrooms.
The Conservation Commission hearing on the revetment petition was continued
until 1/25/03, and the hearing on the structures was continued until 2/4/03.
The Board inquired about the plans in Table 11 and the proposal for the second
floor bedrooms. It appeared that the renovations might result in six (6)
bedrooms. The Board of Health license limits the property to four (4) bedrooms.
The petitioners will agree to limit the number of bedrooms to four (4). This
condition will be predicated upon upgrading the septic system to a four (4)
bedroom capacity and the approval of the Board of Health and the Conservation
Commission.
In reply to a question from the Board, Mr. Singer stated that the Mulligans had
owned the property for many decades as a five (5) bedroom home.
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The Board and the petitioners discussed the exposure of the property to storm
surge in a Velocity (V) Zone. Mr. Markunas plans to make elevation changes in
the replacement structure. Both dwellings would be in immediate danger
without the bulkhead and revetment. The garage with a second floor would still
be less than twenty-five (25) feet in height [Cf. Conservation Agent Seth
Wilkinson's measurement of thirty-two (32) feet].
Discussion was opened to public input. Mr. Stephen McKenna, Chairperson of
the Conservation Commission, said he viewed the Lieb and Mulligan proposals in
three (3) parts: septic system, revetment, and accessory building. Mr. Henry
Hayes, 110 Breakwater Rd., asked how the revetment would affect drainage into
Cape Cod Bay. Mr. Markunas stated that the water would not approach the
rocks protecting the drain pipe.
Ms. Elizabeth Taylor, Chairperson of the Planning Board, stated that the height of
the rebuilt structure could affect the view. The space between the groin and the
revetment could scour out, and a snow fence would be needed to reduce that
possibility. The beach east of the groin is already peeling back.
The Board asked what the difference in height would be between the finished
garage and the existing house. Mr. Markunas replied that the garage would be
three to four (3-4) feet higher.
Motion to close discussion to public input, 2"d, Board all in favor.
In reviewing the issues, the Board deferred to the Conservation Commission on
the septic system upgrade and the revetment. The accessory building did not
meet variance criteria. The result of the construction will be two larger buildings.
There was some skepticism about the estimate of the garage's height, especially
since it would be placed on pilings. The emphasis should be on minimizing the
mass of the structures.
Mr. Harrison moved to approve the special permit provided that there was a limit
of four (4) bedrooms in both structures and contingent upon approval from the
Conservation Commission, 2nd by Mr. MacGregor, Board all in favor.
02-48. Cheryl and Jeffrey Morse, 1882 Main St., Map 17, Lot 50.
Request a special permit under Brewster Zoning Bylaw, Art. IV, Sec. 179-11, to
continue the existing use of the property as the Candleberry Inn.
Cheryl and Jeffrey Morse were present with attorney George Kavanaugh.
Hearing this case were Messrs. Lach and MacGregor; Ms. MacInerney; Messrs.
Nixon and Stewart.
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Mr. Kavanaugh referred to the purchase-and-sale agreement with the Donnellys,
who were present, and previous permits from the ZBA in 1988, 1991, and 1997.
The petitioners agree to abide by the conditions in the 1997 permit: meals will
only be served to guests, parking lot will remain unpaved, screening will be
maintained, rentals will be restricted to nine (9) rooms, Title V septic system will
be maintained, and parking requirements will be met.
Discussion was opened to public input. In response to a question from the
Board about facilities for the handicapped, the Donnellys replied that guests with
handicaps found that the facility was very convenient for them.
Motion made to close discussion to public input, 2nd, Board all in favor.
Mr. Lach moved to approve a special permit, 2nd by Mr. Nixon, Board all in favor.
02-49. James Lynch, 15 Gilbert Rd., Map 7, Lot 141. Request a special
permit under Brewster Zoning Bylaw, Art. VIII, Sec. 179-25 (B), to construct
additions to an existing dwelling.
Helen and James Lynch were present. Hearing this case were Messrs. Harrison,
Jackson, MacGregor; Ms. McInerney; and Mr. Stewart.
Mr. Lynch described the property and surroundings as a summer cottage area.
The lot is 100' x 127'. Mr. Lynch described the proposed additions, which include
a single story of approx. 512 sq. ft. on the east side and a screened porch of
approx. 240 sq. ft. There will be no further incursion into the side yard setbacks.
The Board reviewed the plans and complimented the petitioners on their
completeness and clarity. Several photographs of the cottage were displayed.
Discussion was opened to public input. None heard. Closed to public input.
Mr. Jackson moved to grant a special permit, 2nd by Mr. Harrison, Board all in
favor.
02-50. James J. Mulligan Revocable Trust, 268 Breakwater Rd., Map 4,
Lot 15. Request a special permit under Brewster Zoning Bylaw, Art. VIII, Sec.
179-25 B, to upgrade a sewage disposal system located within a coastal dune
area. Request a variance under Brewster Zoning Bylaw, Art. II, Sec. 179-6 C (3),
to allow a sewage disposal system in a wetlands conservancy district.
Mr. Robert Perry, engineer, represented the petitioners. Hearing this case were
Messrs. Freeman, Harrison, Jackson, MacGregor, and Ms. MacInerney.
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Mr. Perry described the project as a conservancy district issue. The entire lot is a
dune. There is a build up of sand near the existing septic system. An existing
two-foot storm drain runs to a storm manhole.
The Board and Mr. Perry reviewed the specifications of the proposed system.
The force main has a 1,000 gal. capacity with a chamber of 440 gpd. That
leaves ample reserve capacity in case of power failure. There is no gravity flow
out of the pump chamber.
Discussion was opened to public input. Mr. Henry Hayes, 110 Breakwater Rd.,
asked whether the system should be self-contained, considering the danger of
overflow into such a sensitive area.
Ms. Elizabeth Taylor, Chairperson, Planning Board, wondered how work could be
done in the area, considering that the force main would cross the Considine
ditch. The septic system will be on the margin of the 100-year-old flood plain.
There is frequent flooding in the Breakwater area. Is there enough distance
from there to the septic system? Storm surge in the '91 storm reached the Town
parking lot, and the septic system is lower than the parking lot.
Mr. Perry stated that the proposed system was the optimum solution to sewage
disposal in a dune area. A self-contained system could easily be neglected, and
the resulting overflow would quickly pollute a wide area. Current zoning bylaws
and coastal regulations were being fully met with this proposal.
The proposed septic system is restricted to the existing number of bedrooms --
four (4).
Discussion was closed to public input.
The Board complimented Mr. Perry on a good proposal. A special permit was in
order. All other Town agencies should be on board before the project goes
ahead.
Mr. Jackson moved to grant a special permit, 2nd by Mr. MacGregor, Board all in
favor.
In response to Mr. Perry's request for a withdrawal of the variance request, Mr.
Harrison so moved, 2nd by Mr. MacGregor, Board all in favor.
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02-51. Jean-Paul Rutledge, Trustee, Partridge Realty Trust, 29
Partridge Circle, Map 13, Lot 9. Request a special permit under Brewster
Zoning Bylaw, Art. VIII, Sec. 179-25 B, to remove four (4) existing structures
and construct a 3-bedroom, single family dwelling. Request a variance under
Brewster Zoning Bylaw, Art. X, Sec. 179-52, to allow the 3-bedroom, single
family dwelling to extend into the side yard setbacks.
Present were Mr. Rutledge and attorney Roger O'Day. Hearing this case were
Messrs. Freeman, Harrison, Lach, MacGregor, and Stewart.
Attorney O'Day described the project's site, elevation, and septic system plans on
a 15,939 sq. ft. lot with a fifty-six (56) foot frontage. The property has an
existing dwelling, shed, barn, and outhouse, all in advanced stages of disrepair.
Referring to previous ZBA case #01-09, Mr. O'Day said the Town counsel had
then ruled that a special permit could be granted to build another dwelling on
another footprint on the same lot.
The site plan shows that three structures will be removed. The existing dwelling
is eighteen (18) feet from the road. The proposed house has three (3)
bedrooms and two (2) stories, same as the existing house.
Replying to the Town counsel ruing in the 1991 cyase, Mr. Stewart believed that
the issues were dissimilar. Specifically, the word "alteration" doesn't mean the
same as "demolish and rebuild in another location."
Discussion was opened to public input. David Delany, Lot 19, stated that the
proposed house is just ten (10) feet from his back yard. Capes and ranchers
predominate in the neighborhood. He believes thatthe house would be
detrimental to the area.
Elizabeth Hardy lives diagonally across the street fran an abutting property to
Mr. Rutledge's and was appalled at the size of the house going up.
Mr. Benjamin , 6 Partridge Circle, wonderedhow such a large house
could be allowed on a narrow lot. Other residents expressed similar concerns.
The Board noted the absence of dimensions on the dan for a house that appears
to be60' x30'.
Attorney O'Day responded that the proposal does notoverwhelm the
neighborhood, but if the Board feels it is not substaitially detrimental, it can
approve a special permit with conditions that will mtigate the impact.
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Discussion was closed to public input.
The Board concluded that the house's dimensions were too large for a
neighborhood where existing homes were much smaller and so close to each
other already. The Town counsel letter referred to in the previous case dealt
with a dwelling that was far smaller than the proposed one.
Mr. Lach moved to continue the case until March 11, 2003, so that Mr. Rutledge
can draw up plans for a smaller dwelling, 2nd by Mr. Harrison, Board all in favorf.
02-52. Paul and Virginia Goldense, 43 Robinson Rd., Map 5, Lot 60.
Request a special permit under Brewster Zoning Bylaw, Art. VIII, Sec. 179-25 B,
to add a second floor, other interior space, and a porch to an existing, 2-
bedroom dwelling.
Mr. Goldense was present. Hearing this case were Messrs. Harrison, Jackson,
Lach; Ms. McInerney; and Mr. Nixon.
Mr. Goldense described the current dwelling as a rancher on a 32' x 30' footprint.
The Goldenses are converting it into a double, four (4) dormer classic cape. The
septic system has a three (3) bedroom capacity. The resulting dwelling will be
substantially smaller than the adjacent house and others in the neighborhood.
They will add 102 sq. ft. to the dwelling's footprint. The front setback on the
structure is non-conforming, 22' 9" vs. 30' currently required. There will be no
further incursions into setbacks.
Discussion was opened to public input. One appproval. Closed to public input.
The Board reviewed the plans and was satisfied with the answers to its
questions. The proposed changes were deemed to fit well with the
neighborhood.
Mr. Jackson moved to grant a special permit, 2nd by Mr. Nixon, Board all in favor.
02-53. Stephen McKenna, 757 Slough Rd., Map 51, Lot 11-4.
Request a special permit under Brewster Zoning Bylaw, Art. V, Sec. 179-16,
Table 2, Note 14, to build a 558 sq. ft. accessory apartment above an existing
garage.
Cynthia and Stephen McKenna were present. Hearing this case were Messrs.
Freeman, Lach; Ms. McInerney; Mr. Nixon, and Mr. Stewart.
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Mr. McKenna described the dwelling as a three (3) bedroom house with a vacant
space above the garage. The recent illness of a family member necessitated the
construction of an accessory apartment in this space.
The Board reviewed the plans. The McKennas stated that the septic system has
a four (4) bedroom capacity. There was no further discussion.
Mr. Stewart moved to grant a special permit with the usual conditions for an
accessory apartment, 2nd by Mr. Nixon, Board all in favor.
The Board adjourned at 12: 20 A.M., Wednesday, January 15, 2003.
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