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
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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.
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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-
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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".
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• 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
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• 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.
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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.
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• 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.
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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
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• 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
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• 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
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