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