Loading...
HomeMy Public PortalAboutZoning Board of Appeals -- 2003-12-09 Minutes Town of Brewster Public meeting Minutes of Zoning Board of Appeals Tuesday December 9,2003 Brewster Town Office Present: Chairman, Harvey Freeman; Vice Chairman, Phil Jackson; Herb Loch; Suzanne McInerney; Bruce McGregor; Art Stewart; Brian Harrison and Bob McClellan. John Nixon did not attend. Chairman recognizes new alternate member Bob McClellan to the Board. He has a long experience with Planning Board. Art Stewart is now a regular member of the Board. Chairman informs the Board of Clerk Martin Gardiner's decision to quit the ZBA position and is no longer with us. Minutes of 11/12/2003 were approved on a motion by Stewart, Loch second. All voted in favor McGregor and Jackson abstain. 03-52. Continuation: Loretta McQueen, 171 Center St., Map 3, Lot 44, requests a special permit under Brewster Zoning Bylaw, Art. VIII, Sec. 179-25, to replace an existing dwelling. Present representing the applicant were Atty Stephen Jones and Architect Tony Pond. Sitting on is Jackson, Harrison, Stewart, McInerney, and Loch. Jones -Rm Zone, the petitioner seeks to renovate an existing single family home. The renovation proposed is to remove what exists; the existing house was built as a cottage, 70-80 years old. The petitioner wishes to renovate to make it more livable and serviceable, with the plans that have been submitted to the board. The existing structure will not support the renovations. The renovation will bring the home up to current building code. the lot is non-conforming, because it has 79 feet of frontage and area of 5,148 SF. the house is non-conforming on all four sides for the set backs. The petitioner. the petioner proposes to eliminate one side yard set back encroachment to the south along Bradford Road, by removing 300 square feet and enclose an existing covered porch and extend and square off to the Northeast corner and extend and square off a section on the west side of the house (24ft) with an extended encroachment of 1 1/2 to 4 feet. The current lot coverage is 1,463 SF the proposed is 1,296 SF the home is an existing 3-bedroom house with the proposal being 3-bedrooms also. We believe this proposal fits the requirements of the Goldhjirsch court decision and subsequent interpretations of that decision. As the board would recall the Goldhirsch court indicated that the board must first needed to identify the non-conforming aspects of the project. Those non-conforming aspects are side yard setbacks, lot size, frontage and lot coverage currently. Next the Board must next determine whether the proposed alteration or extension would intensify the existing non- conforming use or result in new ones. We acknowledge that the Board could find intensification because of the addition of the second floor and there are creation of new ones in the extension of the northeast corner and west side extension. However there is also a reduction of the non-conformity to the south by bringing it into compliance, and reduces the lot coverage. Under Goldhirsch if the board finds a intensification of non-conformities then the Board must go on to find if the increased non-conformities or intensifications are substantially more detriment to the neighborhood then what exist today. We suggest to the Board that the Proposed changes do not make it substantially more detrimental to the neighborhood and further that this type of alteration/extension is in fact with in the power of the board as evidence in an opinion from Town Counsel in a previous case that I had before the Board. We are removing a structure that is not built to current Mass. building standards, the change alteration will not be substantially more detriment to the neighborhood. there will be an improvement to the neighborhood further the continue use will not increase the noise pollution or traffic in the area, in fact parking for the area will be improved because of pulling the house away from Bradford road will add parking area to the lot. We request that the find the proposal not more detrimental to the neighborhood and the board grant request for special permit. Jackson - 22ft height? Pond- 24ft from ground level. Jackson - septic system? Pond- existing title 5 system which has been inspected and will meet6 the requirements. 3-bdr. system installed about 7 years ago. Stewart - any neighbor comment? Jones - only one call, asking about what was proposed from the neighbor from the west. Freeman - I spoke with the neighbor to the north, Ms. Fasson she had no problem with it as well. There is a mix of one and two floor cottages in that area. McInerney - you state that there is an increase in intensification. Jones - the Board could find that yes. McInerney - if that is the case that would be a new non-conformity? Jones - not in the way I read the cases the courts say that raises the standards for the board either a new non-conformity, we admit there are two here that we are proposing or an intensification and the board has found in the past that single story to a two story is an intensification and I AM NOT PREPARED TO dispute that with the Board because I feel that even if the Board finds that there is an intensification and finds that we are increasing two areas of non-conformity while reducing two others. That in fact none of that makes it substantially more detrimental to the neighborhood McInerney - my understanding is that we do not have the right on this board; the only place to create a new non-conformity would be at town meeting. Jones- that would be true for a Zoning Law itself. Jones- the addressing of a preexisting non-conforming single family dwelli8ng on a lot is all done via this special permit process, according to the Goldhirsch decision and Town Counsel Opinion and a progedy of cases that came before and after the goldhirsch. McInerney - the philosophy of having to come for a special permit increases the non-conformity not make matters worse but to discourage anything like that. I don't feel I could vote for it because I feel that it creates a new non-conformity. Harrison - - I Disagree, to create a new non-conformity would be to further encroach a sideline setbacks, more so than what already exists. Kind of filling in the box where it's already non-conforming. Stewart- this is quite common application, issue is only intensification. The neighbors do not object. No public comment, on a motion by Stewart, Loch second, all in favor. Motion by Loch, "approve the petition for the reasons set forth in the presentation and the fact that the project is not substantially more detrimental to the neighborhood", Stewart second. 4 in favor, 1 oppose (McInerney). 03-53. 3une Kirchgessner, 130 Millstone Rd., Map 28, Lot 14, requests a special permit under Brewster Zoning Bylaw, Art. VIII, Sec 179-25 B to make additions and alterations to certain buildings and resume operation of a former cottage colony. In regards to petition 03-53, Freeman read a letter dated December 4th, 2003 from Atty. Richard 0. Perry regarding the owner of the property (Kirchgessner) and the petitioner (Revereruzzi). Stating that the petitioner had no right to petition for this property and that the property has been sold to another entity. On a motion by Loch, Jackson second "Withdraw petition on #03-53 without prejudice". All voted in favor. 03-54. Paul Barth and Kathe Knight, 39 Carver Rd., Map 31 Lot 19, request a special permit under Brewster Zoning Bylaw, Art. VIII, Sec. 179-25 B, to make renovations to an existing dwelling and add a second floor dormer. Members hearing this case: Freeman, Jackson, McGregor, Harrison, and Stewart. Present for the petitioner: David Lyttle of Ryder and Wilcox. Lyttle -the petitioner's lot becomes non-conforming due to lot frontage and the structure is closer to the wetlands than zoning allows. The propose to add a second floor dormer to a pre-existing non-conforming single family dwelling. the dwelling is non-conforming in that it has side yard setbacks of 20.5' +\- and 14.2'+\- where is 25' is required and in that it is located 40.6' +\- from the top of a coastal bank where a 50' setback is required. The proposed addition does not increase the nonconforming nature of the dwelling. There will be not change in the existing footprint. No increase in the number of bedrooms. The existing septic is suitable. New roof and windows, with no increase in ridge height. Conservation Commission orders has been recorded. The condition of the Conservation approval was to add additional plantings for the area within the 50' buffer and where the closest neighbor is where the lawn is presently will become a natural buffer. Lyttle - the proposal is not more detrimental to the neighborhood, no increase in the ridge height and no increase in the amount of bedrooms. No one spoke from the public. Motion from Jackson "close to public comment". Harrison second. All voted in favor. Motion by Harrison, "Grant Special Permit from reasons by applicant, not detrimental to the neighborhood". All voted in favor. 6. Discussion of 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. Present Robert Perry, Julie Trzcinsky, Leo Cakounas and Victor Staley, Building Inspector. Freeman - this is a discussion item between me, Jackson, MacGregor and Suzanne McInerney. Regarding an interpretation clarification of what had been decided back on April 9, 2002. Perry - when the special permit for recreational use was granted to allow 5 bed and barn cabins that had conditions regarding seasonality and use. The second half of that decision regarded the overturning of the building Inspectors decision as it related to agricultural Use at the property and I quote "Overturn the Building Commissioner's decision as it relates to agriculture uses at the Property, including without limitation maintaining a horse farm. Stabling and boarding of horses, teaching about horses, maintaining a horse riding school and barns and other farm-related buildings and dwellings on the Property, such uses being allowed by right at the Property, but not overturning the Building Commissioner's decision with the respect to the cabins being used as part of the bed and barn use". At the time this decision was granted, the snapshot in time included the owner's residence, two farmhand maintenance dwelling units and the five cabins, several barns, classroom and sheds. The question is as Julies use of the property has increased in the need for labor and had the intent of converting one more of the buildings into a dwelling. She is possible able to get by with the decision as it was rendered, but the issue relates to a building that proposed another dwelling. is the additional building in keeping with the special permit when the Board overturned the decision of the Building Commissioner? Staley - Julie situation has evolved, when does the agriculture exemption become not an exemption. Does some one need to work 1 hour a week or son on. My involvement to farm labor is of the dormitory style. As in a single family dwelling unit style I do not know how to delineate that and where does that stop, the area is large enough to large operation. I believe Julie uses a barter system labor for living expenses. The Zoning Bylaw allows two dwellings. Julie - what constitutes the use of the dwelling for agricultural use, the units that house the farm laborers would work full time for me. I have two other jobs that cause me to be away from the farm. I really need people to on the farm, would work full time in for a dwelling unit. These individuals do have other jobs also. Jackson- the way I remember this is the decision is written very clearly about the five cabins. the other part of the decision about the main house and the other dwellings is not written as definitively, but it does say the property does contain 15 areas of land 14 bui8lding including the petitioners house, two year round cabins ectra ectra, this implies that we allowed the petitioners house and two year round cabins is that what your asking for now or are you asking for three cabins. Perry —Yes, she is asking for the 3rd farmhand cabin. Staley- if this was a dormitory it would meet the Agriculture exemption, but this is clearly a dwelling. The Board stated that another permanent dwelling use would violate the bylaw and that amendments to the original application (02-06) would be needed. 03-51. Continuation: The Town of Brewster Planning Board, in accordance with M.G.L. 40A, Sec. 15, appeals the decision of the zoning agent regarding a determination that educational and religious uses are exempt from Brewster Zoning Bylaw, Chap.179, Art. XII, Corridor Overlay Protection District. ZBA members hearing case: Jackson, Harrison, Freeman, McGregor and Stewart. Member of the planning Board present: Jane Remy, Elizabeth Taylor and Marjorie Pierce. The Board briefly discussed this and agreed to continue to allow town counsel to be present. Motion by Harrison, Jackson "continue to January 14, 2004" 4 yes 1 no (McGregor). Discussion of Proposed Board Rules for 40B Comprehensive Permits. —The board reviewed document done by Ms. McInerney and had a few suggestion and changes final version would be presented to the Board at a future meeting. Meeting Adjourned at 10:40PM Shari Plaice Clerk