Loading...
HomeMy Public PortalAboutZoning Board of Appeals -- 2005-02-08 Minutes f Date approved 03-08-05 ' S TOWN OF BREWSTER x Meeting Minutes Zoning Board of Appeals February 8, 2005 0 rn Chairman of the Board, Harvey Freeman called the meeting to order at 7:00 p.m • The following members were present; Messrs. Freeman, Stewart, McLellan, Harrison, Nixon, Jackson and MacGregor and Ms. Flaherty. Absent was Ms McInerney. • Bylaw Changes Discussion meeting will be held 2-11-05 and 2-18-05 (with consultants Horsley + Witten) at 1:00pm. • Minutes of January 11, 2005 were accepted as written. Motion to accept made by Mr. Stewart, seconded by Mr. Nixon all present voted aye, and the minutes were approved. CONTINUANCE 04-56. Richard and Hope Cleary, 130 Gull's Way, Map 34 Lot 55, Applicant requests an appeal of the Zoning agents decision and in the alternative seeks a dimensional variance for relief of the frontage requirement as in Brewster zoning Bylaws Sec. 179-16 Table 3. Members to hear this case were Messrs. Jackson, MacGregor, Harrison, Stewart and Freeman. Attorney Frank DiLuna represented Mr. Cleary. Mr. DiLuna presented 2 documents to the board for general information; Tree Farm Brochure and Certification of Nursery Inspection. He then presented a general overview of the area- both agricultural and residential. • Cleary property is a 9+-acre site with 199' frontage on an ancient way with proper access for emergency vehicles. • Plan is to expand the number of trees grown within this area. Mr. Cleary delivers to the client rather than retail sales on site. • Building on site will be for tools, supplies etc. plus a detached greenhouse. • Mr. DiLuna presented Mr. Cleary's son's rendition of the type of business on site. • The area will be buffered 10' throughout and lights will be within the buildings only. • The building will be a Morton Barn style structure, agricultural use only-no office. Mr. DiLuna made a request to overturn the Zoning Agents decision and allow expansion as stated with acceptable and reasonable restrictions. i 1 c DISCUSSION- • Mr. Stewart asked what changes would occur within the business for intensification such as heavy equipment, customer's etc. • Mr. DiLuna noted 1) because of anticipation of repair of equipment within the barn, this cannot be denied with what will happen in the future. 2) various equipment is stored there presently as well as fertilizer storage. No commercial vehicles will be stored on site-they are stored elsewhere. • Mr. Stewart noted safety is an issue. The biggest issue is Gulls way access; it is drivable but not great. • Mr. DiLuna stated according to current plans trucks are expected to be no larger than what has access to nursery now. Larger trucks are off loaded at another site. • Mr. Freeman asked if this off loading impacts traffic? Mr. Cleary answered: NO • Mr. Freeman asked if there would be any further expansion? Mr. Cleary answered: NO • Mr. MacGregor asked for informational purposes what is the total amount of the product in the ground? Mr. Cleary answered: 800 trees in the ground, additional 500 in and out. • Mr. MacGregor asked how many trees are moved out at a time and how long do they stay in the ground? Answer: 10-20 trees at a time and they stay in the ground approximately 5 years with drip irrigation The meeting was opened to public input. • Attorney David Reid - representing abutters- presented information regarding frontage, reasonable and safe access, and road condition for access and egress. • Abutters -presented by Mr. Reid- had the following concerns; limit of traffic, is this business separate or an accessory to Mr. Cleary's construction business, and will this be principally agricultural in nature. • Mr. Reid also noted what happened to the Special permit issued a few years ago for the residential building; are we switching use from residential to agricultural? • Mr. Staley noted that use is allowed by right, the building is in question because of frontage. • Mr. Jackson noted as a simplification; is use OK but building is not? Answer by Mr. Staley...that is right. • Mr. Jackson questioned if there is a case for a variance? • Mr. Staley responded that if his decision could be overturned. • Mr. MacGregor noted farm with dimensional requirement with 5 acres but lack of frontage. • Mr. Staley noted this can be kicked out due to lack of frontage • Mr. DiLuna addressed the frontage issue-why one side of Gulls way has access for emergency vehicles and the other does not? Regarding use- 2 reasonable regulations can be put upon the applicant. The building will be consistent with type of business (Morton style barn). • Mr. Cokounes (Cape and Island Farm Bureau) stated the attorneys have made both cases. It is the Boards decision to establish reasonable regulations such as traffic, limit equipment, hours of operation. • Fred Budreski (neighbor) expressed concern about water quality with the use of pesticides infiltrating the ground water. All neighbors have private wells. Will the water quality be affected? • Mr. Freeman noted there are 3 wells on the Cleary property; one for irrigation, 60' deep. The ZBA had deferred to the Board of Health on this issue, as it is not within 100' of pond. • Scott Gallagher stated regarding the wells; originally Zone 2-recharge area but this has been taken out of that area. The project meets minimum levels of Development Reg. Impact. Nitrogen and Phosphorous levels are concerns. Pesticide usage would not have a plan available to the Board of Health. They are not required to give actual names and amounts of fertilizer used. • Mr. DiLuna noted that if the Board goes this way, they open town to all other lawn etc. companies reporting. Cleary Farm now uses slow release encapsulated system. Regulation of pesticide application is delegated to Pesticide Board of State of MA. This is annually reported to the mentioned Board by applicator. • Peter Herman noted this is pre-existing activity • John Cleary discussed that this road has been used adequately over the years with many uses such as Girl Scout camp school buses and there have been no problems. • Mr. Budreski asked if there will be future enlargement of business, or only to the size indicated? If the barn were built this would be the sixth building on the site. • Pete Mullin noted that it looks like the Cleary's are trying to improve the area by containing pesticide and equipment. The road is there, the farm is there, and the building is needed to pull this all together. • Peter Herman asked if the Cleary's could build four houses? • Mr. Staley indicated no response • Mr. DiLuna stated restrictions could be placed on the building. • Mr. Stewart questioned the reference to the construction business. • Mr. Cleary noted his general contracting equipment is left on work sites. • Mr. Freeman asked if the barn would be used for maintenance of construction equipment? Answer: NO. Also would you sell an individual tree? Answer: Could, but NOT interested in that type of business. Reasonably: by appointment only basis. • Mr. MacGregor asked what is a Morton building? • Mr. Cleary noted it is a wood frame into the ground, no foundation, cement floor encapsulating the posts, red cedar shingles, and green metal roof. Traditionally called "pole barns". 3 • Mr. Cakounes noted regarding the pesticide issue; farmers are aware of what and how to apply under Federal restrictions license. Reporting is required when applying to other people's property. Records are kept. More pollution occurs with homeowners -dishwashers, washing machines etc. • Mr. Freeman asked if Cleary Tree Farm applicator has a license? Answer: YES, use Bartlett for gypsy moth infestation. • Kathy Budreski noted all value the health of the pond and the neighborhood. They value the neighbors and the Cleary family. Close to public opinion; motion to close by Mr. Harrison, seconded by Mr. Stewart, all voted aye. CONTINUED DISCUSSION- • Mr. MacGregor stated he wants to see farming continue in this town. First indication to overturn and continue with barn as a normal part of a farm. Does not see access as an issue. • Mr. Stewart notes after a site visit; the road is wider than he first thought and homes are set quite a way back. We are not talking about business expansion of increased traffic and road use. Regarding safety issue try to put down reasonable regulation. • Mr. Harrison noted Mr. Staley made the correct decision. Access is adequate. Would proposed structure impact usage of road? He would be in favor of modifying with conditions. • Mr. Jackson stated it would be prudent to modify decision. Opinions are in unison. The applicant does not seem to have a problem with restrictions- make them part of the agreement. • Mr. Freeman feels the drawings are up to date and all 3 buildings are outside of setback area. • Mr. DiLuna if the majority would consider a decision with restrictions. They would consider withdrawing the variance. The "hoop house" is exempt from zoning requirements for agricultural use only. • Mr. Freeman as Chairman of ZBA will relate concerns to the Health Dept. including issue of monitoring wells. Motion made by Mr. Jackson: pursuant to 04-56 Richard and Hope Cleary, 130 Gull's way, Map 34 Lot 55 modify decision of Zoning Agent and allow construction according to map site plan dated 6/14/04. Relative to the building the following conditions are imposed; • No agricultural planting south of Gull's Way • No construction equipment vs. agricultural equipment • No new wells • Hold traffic to and from site as per past few years • Retention of 10' vegetation buffer (side and road) • Transfer of trees etc. will be off site as much as possible 4 • Use of slow release or natural fertilizer Second by Mr. MacGregor, all voted aye. GRANTED with conditions. Decision to written BY Mr. DiLuna Motion to withdraw Variance moved by Mr. Jackson, seconded by Mr. Stewart, all voted aye. VARIANCE WITHDRAWN. CONTINUANCE 04-52. Geraldine Boccio, Trustee of Boxer Shorts Realty Trust, 4018 Main Street. Map 30, Lot 22. Lot is located in the V-B zoning district. Applicants request to appeal the decision of the Zoning Agent in accordance with G.L.C. 40A, #8 & 15. Under Brewster Zoning By-law Chapter 179, Article V, Table 3 ( Height and Bulk Regulations). Proposed project will result in 18.6% of lots buildable upland. Members to hear this case were Messrs. Freeman, Jackson, Stewart, McLellan and Nixon. Attorney Frank Sheeley and Builder Michael Grayson represented Ms. Boccio. DISCUSSION- • Mr. Freeman stated this case is heavily involved with proposed bylaw changes to go before Town Meeting in June 2005. Applicant has a choice to withdraw without prejudice then the building can be constructed as of right or ZBA can deny and this will be moot when town changes the bylaw. • Mr. Sheeley notes his client understands this problem and he has been authorized to ask for a withdrawal to move to a more favorable time. Board finds this a logical solution FURTHER DISCUSSION- • Mr. Sheeley notes "basement issue"; not included as interior floor space under Mr. Staley's opinion. Contractor was told basement would exceed Table 3 interior space. Property owner deleted it. • Mr. Staley felt interior floor area vs. floor area net (accessory apartments) are different. Basement should be included with interior floor area. • Mr. Sheeley asked guidance for the landowner about removing the slab. He needs a definition of interior floor area. Motion by Mr. Stewart pursuit to Geraldine Boccio, Trustee of Boxer Shorts Realty Trust, 4018 Main Street, Map 30 Lot 22 to WITHDRAW WITHOUT PREDUDICE, seconded by Mr. McLellan, all voted aye. s f 05-01. Dean R. Miller, 1567 Long Pond Road, Map 47 Lot 105. Applicant seeks a Variance under Brewster bylaw 179-52 and or Special Permit under MGL 40A-9, corner property with 2 frontage setbacks. Requesting a one-foot relief variance of existing non-conforming single family home. Members to hear this case were Messrs. Jackson, Harrison, MacGregor, Nixon and Ms. Flaherty. Mr. Miller gave a brief overview of the lot and the original dwelling as well as his proposal before the Board. DISCUSSION- • Mr. MacGregor asked why the addition cannot be moved back one foot? • Mr. Miller answered that the stairs and entrance would be compromised with this change. • Mr. MacGregor noted as shown on the drawing, is the new addition set 5' back from the existing house? • Mr. Miller answered that the offset is 1 . The Historic Commission discussed the double off set. • Mr. MacGregor again asked if the issue of sliding back I' would compromise the interior stairs? • Mr. Miller noted yes and it would make doorways and other areas tight. • Mr. Nixon asked if the initial setback was 25'? • Mr. Staley noted the original measurement was probably from the blacktop (back in the mid 70's that is how it was done). • Mr. MacGregor asked if the plot plan was originally certified? Answer NO • Mr. Nixon noted that a variance should be granted on the initial building, as they cannot compound an issue that was wrong prior to this. • Mr. Jackson made note of pre-existing, non-conforming is a special permit (Goldhirsh). New opinion regarding 40' setback. • Mr. MacGregor asked why it is not a special permit? • Mr. Staley stated the building was built in 1972 with 30' setback, same note 3. • Mr. Jackson stated the Board has been consistent in applications of this bylaw. • Ms. Flaherty expressed confusion as to the 25' setback. • Mr. Miller responded; set up a frontage on McGuerty Road, front door on McGuerty, driveway on McGuerty. The meeting was open to public input • Attorney Jones noted judicious application can find for the applicant. Grant relief if they find appropriate for the applicant. • Mr. Freeman noted the Board tries to adhere to the bylaws. 6 • Attorney Ben Zehnder noted condition of dual frontage issue provides a hardship to the applicant as to the way he has to construct the building and how neighbors will view the structure. Close to public input; motion made by Mr. McGregor, seconded by Mr. Nixon, all voted aye. CONTINUED DISCUSSION- • Mr. Jackson stated he agrees with both attorneys to allow applicant to construct as applied. • Mr. MacGregor asked if this had been passed by Historical Districtt? ANSWER yes • Ms. Flaherty asked if the Board must give a variance on the existing house and the new addition? She felt the slope of the land necessitated the original placement of the house topographically. • Mr. Harrison stated Town Counsel's letter regarding this case leaves it open to the Boards own judgement- nonconforming. • Mr. Freeman stated non-compliant is not non-conforming. • Mr. Jackson made a motion to grant a variance for an addition with reasons set forth by applicant. • Mr. Staley noted two variances are needed. • Mr. MacGregor moved to withdraw previous motion to legally protect existing dwelling. Motion 1 made by Mr. Jackson: relative to Dean R. Miller, 1567 Long Pond Road, Map 47 Lot 105. Be GRANTED a variance to recognize the legality of the existing structure at 25' setback and recognized as non-conforming. Seconded by Mr. Nixon, all voted aye. Motion 2 made by Mr. Jackson to GRANT VARIANCE OF A 29' SETBACK FROM Long Pond Road, under criteria for variance regarding the steep slope on northern edge of property. This would preclude moving the dwelling to a 30' setback representing a hardship. Contingent upon this having been approved by the Historical District. Seconded by Ms. Flaherty, all voted aye. 05-02. Stephen C. McLeod et ux, 42 Morningstar Cartway, Map 47 Lot 10-2. Applicant seeks a dimensional variance under Brewster bylaw 179-52 and or Special Permit under MGL 40A, Sect. 8 and 15 and or appeal the decision of the Zoning Agent. Requesting permit for construction of single family dwelling on a lot lacking proper frontage and less than the minimum five acres. Members to hear this case were Messrs. Freeman, Nixon, Harrison, McLellan and Ms. Flaherty. 7 Attorney Ben Zehnder represented Mr. and Mrs. McLeod. Mr. Zehnder gave an overview of the application. As an unusual situation as to where the lot is located and the neighborhood. A two lot ANR (approval not required) sub division net frontage, access and area. Mr. Zehnder is asking the Board to rule the Zoning Agent was not correct regarding access. Road does posses frontage. DISCUSSION- • Mr. Nixon asked about Fire Department access. • Mr. McLeod stated it is maintained for access. • Mr. Zehnder noted dirt road bylaw is for 5 acres or more on a private way. • Mr. Freeman stated that this was not an approved way and less than 5 acres. Town Counsel advises variance is appropriate. To determine specifics about lot criteria. Applicant is eligible to go to the Planning Board for public services. • Mr. Zehnder spoke regarding 1. Reason for particulars of this lot does provide adequate frontage so building permit can be granted. 2. Then they will go back to the Planning Board for street approval. 3- Historical practice of the town to grant a variance for this type of lot. • Mr. McLellan noted there are other houses across the street. The street is built all the way down. • Mr. Nixon noted dirt road plowing- dirt roads in Brewster have better fire protection that most others town provide. • Ms. Flaherty asked if you are declaring this lot has frontage because of what has been done in the past? • Mr. Zehnder noted that there has been a shift on how new homes are built and building permits issued on dirt roads (cartways). • Ms. Flaherty noted we couldn't approve roads. • Mr. Freeman stated we couldn't provide frontage. • Mr. Zehnder stated the following for support of variance; 1. Meets other criteria except frontage 2. Width, grading. 270' off Long Pond Road significant accessibility 3. Unique in that applicant cannot develop this lot until this is decided producing a hardship for the family and financially. 4. The remainder of the road is developed • Mr. McLellan said this was a hard case because it is less that 5 acres. • Mr. Nixon asked how this lot was acquired and if the proposal of a "paper driveway" would allow frontage? • Mr. Staley said the application has no problem with access, just needs frontage. Open to public input 8 • MaryJane Wheeler (neighbor) noted since 1934 that they have had ample access. How did the other 2 new homes get building permits? • Dulcie Sloane stated neighbors are supportive of this home being built. • Mr. Bulky (Hilarys Cartway) noted this was a rural area of Brewster, which he greatly enjoys and he was told the lot at Morningstar was unbuildable. • Patricia McLeod (abutter) 3rd generation this lot has been in the family, and it was always assumed this was an approved buildable lot. • Mr. Bulky stated if lots were to be 5 acres, how were the other homes built? 1972 ANR allowed for no variance criteria required. • Dawn Aikman (Hilarys Cartway) stated they were told at time of their purchase that the Morningstar lot was unbuildable. Is this precedent setting? • Mr. freeman noted that it does open an issue, keeps town rural and small lots. Unless roads were laid out, accepted and maintained the decision is based on individual merits. • Mary Jane Wheeler spoke to the fact that in the past 60 years very little has developed on Morningstar, only changes were 2 new homes. Land is used well and well protected by the owners. • Mr. Zehnder asked that this not be the test case, it should be considered an appropriately buildable lot. • Mr. Freeman asked if a panhandle could solve this issue? • Mr. Staley said he could not see that happening. • Mr. McLellan said it has been done in the past. • Mr. Zehnder said he does not see this happening. • Brian Moore (abutter) noted he was issued a building permit 5 years ago on the same road. • Mr. Freeman noted there has been a policy shift since June 2004. • Mr. Nixon spoke in reference to Town Counsel's opinion on dirt road bylaw. Is this the Planning Board decision? Does the Planning Board have the option to amend this with less than 5 acres? • Mr. Zehnder that we start with the McLeod application and move forward or overrule the Zoning Agents ruling and continue. • Mr. Staley noted that this is black and white-there is NO frontage. • Mrs. McLeod stated they are paying taxes as if this were a buildable lot, same as the lot the family owns across the street. • Mr. Moore asked if the Planning Board as an ANR previously approved this in 1972? Answer YES Mr. McLellan made the motion to close to public input, seconded by Ms. Flaherty, all voted aye. FINAL THOUGHTS- • Mr. Harrison doesn't see a variance, meant to be a buildable lot but how do we get there? • Ms. Flaherty asked if Mr. McLeod could get a determination from the Planning Board? Answer YES 9 r • Mr. Zehnder noted that this could put all lots, not on an approved road, could be sent to the Planning Board. • Ms. Flaherty feels that seems to be the solution. • Mr. Zehnder noted that if the Planning Board makes a determination then ZBA would not be needed. He would rather take a continuance. Would the ZBA write to the Planning Board regarding this case? • Mr. Nixon stated he couldn't see granting a variance. • Mr. McLellan notes he would allow continuance and write a letter to the Planning Board. Motion made by Mr. Harrison to grant a CONTINUANCE until March 8, 2005 meeting, seconded by Mr. Nixon, all voted aye. 11:00 PM - Meeting adjourned. Resp ively sub fitted by, Marilyn Mooer Clerk 10