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HomeMy Public PortalAboutZoning Board of Appeals -- 2005-03-08 Minutes i Page 1 of 8 Date approved_5-10-05 Vote approved _8-0-0 TOWN OF BREWSTER Zoning Board of Appeals Meeting Minutes March 8, 2005 Chairman of the Board, Harvey Freeman called the meeting to order at 7:00 PM. • The following Members were present; Messrs. Freeman, Harrison, MacGregor, Jackson, and Ms. Flaherty and McInerney. Absent: Mr. Stewart, McLellan, and Nixon. • Minutes of February 8, 2005 were accepted as amended. Motion to accept made by Ms. Flaherty; seconded by Mr. Harrison, all present voted aye 6-0-0 and the minutes were approved. CONTINUANCE- 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. WITHDRAWN CONTINUANCE- 04-53. Wayne H. Hyman-Trustee, Cranberry Cove Cottages Nominee Trust, 3671 Main Street, Map 11, Lot 25. Applicant is seeking a variance in accordance with G.L.C. 40A, #10, Brewster Zoning By-law Chapter 179, Section 179-52. Applicant requests a dimensional variance under section 179-16 table of Regulations, Article V, footnote 12 in order to convert 8 pre-existing one story non-conforming cottage colony units into condominiums for single family use and ownership. Attorney Martin J. O'Malley Jr. represented the applicant. Applicant was not present. Members to hear this case were same as assigned on December 14, 2004 with the exception of Mr. Stewart. They are Messrs. Freeman, Harrison, MacGregor, and Ms. McInerney. Mr. Freeman requested a replacement of Mr. Jackson (Vice-Chair), Mr. O'Malley answered "no problem". Mr. O'Malley was asked to give an overview of this application. The following is a direct quote from tape recording; "At our request on December 14 we did ask for a continuance. That continuance was to today's date. Subsequently the Board never sent us an agreement to extend time in order to preserve our rights to an appeal after the lapse of 100 days. We did file for a constructive grant." • Mr. O'Malley handed the Board a copy of the Continuance Form used by the Town of Barnstable. Page 2 of 8 "When you do request a continuance under a staue I think you have 100 days within which to make a decision and if you don't make a decision. The burden shifts to the petitioner to come in and protect his rights through an appeal to protect himself to establish his variance, which he did. He probably did in a timely way. Never the less this was procedural to protect him so that if we had to go to court this preserves his right to appeal." • Since our first meeting Town Counsel has come in with an opinion regarding this project. The 2 cases refereed to in this opinion were summer colonies converted to year round, with no evidence of usage. • This colony has NOT been seasonal for over 25 years, always a year round basis. Tenant testimony has been established (one resident has been there 17 years). • Realtor spoke to the fact that she has worked with this colony for 20 years and presented 2 year round leases to help establish this. DISCUSSION- • Mr. MacGregor asked if only these 2 are rentals or have all been used? Do you have any utility bills to establish occupancy? Mr. O'Malley stated he did not have these available. All buildings, with one exception, are metered separately for gas or electric. • Mr. O'Malley stated that the owner has provided all types of services a year round home would need; plowing and year round trash pick-up. Leases are drafted by the owner as tenancy-at-will. • Mr. Freeman asked Mr. O'Malley to clarify "tenancy-at-will". • Mr. O'Malley stated a tenancy-at-will is a written agreement, which goes month to month, with a 30 day written notice to the landlord. After lapse of 30 days, if rent were paid in full, you would be able to terminate your lease. No binding obligation to stay a full year. • Mr. O'Malley noted the homes were 100% occupied last year. This year because of the fire, only 4 tenants. Over the last 6 years this was the first time it is not full. When he came to this property it was year-round but there were some serious problems with some tenants but by being onsite he helped stabilized this situation. • Mr. O'Malley continued to discuss that the bank considers the property as commercial thus the mortgage rate is higher, but converting to condominiums Mr. Hyman could get a residential loan at a lower rate. • Focus on use as property used on a year-round basis. • When asked about utility bills for the property Mr. O'Malley stated he could not produce these at this time. All units are separately metered for gas and electric, water is on one meter. All have heating components except for one (#5-Poppy) which is used for seasonal basis. • Mr. Jackson asked about the unit with fire damage. This was the owners unit. • Mr. O'Malley noted the USE is year-round and in existence. It is not increasing the use just converting to a different form of ownership- (condominium). • Mr. O'Malley addressed the 4 criteria previously discussed for variance; topography-shape of the lot, hardship- owner's income and mortgage type, public good-low rents, and substantially derogating from zoning bylaw to catch up on improvements. • Mr. Freeman asked Mr. O'Malley if this was his testimony that it is in year round use except for one cottage. Mr. O'Malley stated yes. Page 3 of 8 BOARD DISCUSSION- • Mr. MacGregor asked what was the future of the place if we agree with this variance? Mr. O'Malley noted Mr. Hyman wants to rebuild the unit destroyed by fire, staying with the property and keeping some units as an investment. • Mr. Freeman asked what would he do to these units if he decides to renovate them? Mr. O'Malley responded rents would remain between $700-$900, thus his income would allow shingling and roofing. • Mr. Freeman asked if any plans to enlarge? Mr. O'Malley noted NO INCREASE in footprint. • Mr. Jackson asked if a special condition could be added that the footprint would remain the same? Mr. O'Malley said he would have no problem with that. • Mr. Harrison asked Mr. O'Malley if he could demonstrate if this is legally permitted? Mr. O'Malley said he could go back 25 years only, they were built in 1941 as seasonal and at some case they were turned into year round type use. • Mr. MacGregor would like to see some proof rather than just statements of individuals. There must be some records. Septic upgrade for year round use in 1994 must be recorded with the Health Dept. He noted that Mr. Hyman originally stated he tried to rent seasonally but this did not work out so he switched to year round. Does applicant have town inspection, permit or license for this use? • Mr. O'Malley indicated only the Fire Department inspected and required each unit to be numbered. Since then no inspections. No permits had to be pulled for the type of repairs that have been done to this point. • Ms. McInerney asked how the Board could be satisfied that hardship is directly tied to the soil and topography? Mr. O'Malley noted that he does not agree with that interpretation. Rather he feels hardship AND topography are separate issues (uniqueness of lot). • Mr. Freeman made reference to the applicant's application; section referring to "soil conditions, shape or topography..." Mr. O'Malley answered that he feels that they answered this in their application and brief submitted. Open to Public Input: • Mr. Jackson referred to Cane Codder article on "affordable housing inventory" that puts Brewster better with total units and percentage of units relative to other towns. Speaks very well for efforts of certain people within the town. Mr. Jackson noted he agrees with Ms. McInerney position that in terms of topography doesn't know how it can be justified. • Mr. Jackson directed the following to Ms Jillian Douglass: "in your opinion do you think these units would add to Brewster's total inventory for affordable housing" • Ms. Jillian Douglass responded; NO, it would not. They don't count toward inventory for town unit. Deed restrictions are needed. Under the Variance application "relief may be granted without substantial detriment to the public good"; these are NOT considered affordable housing although they may sell at a lower market rate. Variance not necessarily in public interest. • Ms. Salvitore (local Realtor) noted this is valuable housing to people without places to live. Page 4 of 8 • Mr. Freeman asked how long Ms. Salvitore has been involved in the rental of these properties? Ms. Salvitore responded: 20 years. Mr. Freeman asked as year round? Ms. Salvitore; yes, only 1 has no heater. • Albert Usover (Affordable Housing) expresses his support for denial. But as a citizen he has a vested interest. He feels with no records of leases or utility bills the legality of year round has not been established. He notes that the last permit pulled from the town for this property was a sign permit; it would read "daily, weekly, monthly rentals"-this indicates transients. Mr. Usover doesn't feel this variance should be granted. • Brian Jenkins (tenant)-has lived 17 years in the same cottage year round. Most of the other units have been rented 1-2 years, and then they move on or buy homes. Most are working people. Most of the documentation was lost in the fire. • Mr. MacGregor noted that he feels that they don't sound like "affordable" due to the fact that they are 200-300 square feet and rent is $750. This doesn't seem to meet criteria. • Mr. O'Malley states they are not here for affordable housing just good affordable housing stock for Brewster. • Ms. Douglass states the owner has bought this as an investment property. Currently serving as valuable assets to this community. Condo conversion doesn't guarantee housing stock. Variance is not a proper way to proceed unless verified. Close to Public Inquiry: Motion made by Mr. Harrison, seconded by Mr. MacGregor, all voted aye, 5-0-0. FURTHER DISCUSSION/THOUGHTS • Mr. Jackson asked if we need a variance if same use? Mr. Freeman noted yes. Mr. Jackson then noted if we look at topography how would we grant this? Was hoping we could count it as affordable housing. • Mr. Harrison feels if the applicant could prove year round housing he would not need a variance. He has not proved year round use. Seasonal use needs a variance. No statute of limitations on use. • Mr.MacGregor noted what Mr. Harrison says makes sense. No proof-leases or utility bills. Not convinced of consistent use. • Ms. McInerney noted a variance required in a case by case basis. She feels strongly that the variance is strict because the town voted it that way. They wanted the Board to be strict unless bylaw is changed. • Mr. Freeman called for a Board motion and vote. Mr. Harrison made a motion to the fact that the hardship in this case is private, it does not effect all owners, especially in light where Mr. Hyman stated before he had someone ready to buy this property. He moved to deny this variance, seconded by Ms. McInerney, vote all aye; 5- 0-0 VARIANCE DENIED CONTINUANCE- 04-55. Paul and Joyce Stier, 1861 Main Street, Map 17 Lot 70 & 75, In accordance with M.G.L. 40A8, 14 the applicant requests an appeal of the decision from Building commissioner regarding the cease and Desist order for the use of tents on the property. Page 5 of 8 Members to hear this case were Messrs. Freeman, Jackson, Harrison, MacGregor and Ms. Flaherty. Mr. Paul Stier and Attorney Michael Ford were present at this meeting. Attorney Ford presented a brief overview and history of the Inn. It was first operated as an inn in the 1940's. There have been several owners prior to the Stiers purchase in 2003. The Stiers came before the ZBA for a Special Permit in 2003, which was granted. In July, 2004 there was a neighbor complaint regarding a tented event, which they felt was "beyond the use of the property". The Building Inspector at the time, David Thyng, issued his finding on 7-9-2004 as a pre-existing, non-conforming inn. On September 14, 2004 a second complaint was filed. At this time Building Inspector Victor Staley felt the tent exceeded the special permit and issued a cease and desist order. On October 4, 2004 an appeal of the zoning agents decision was filed. The applicant is asking the Zoning Board of Appeals to look at the Old Manse Inn and determine which Zoning Agent decision is valid. They feel the narrow interpretation of Mr. Staley puts the Inn in a limited position to run a commercial business. DISCUSSION • Mr. Harrison asked if we know why this is pre-existing, non-conforming use? Mr. Ford indicated that 1981 permit found it as such. They asked for a transfer permit; property to be used in the same manner. • Mr. MacGregor stated "we put the permit on the owner, not the property." This property had those rights. • Mr. Harrison wanted to speak to the frequency of use? How many tents? Is this considered a "change of use"? Mr. Ford answered that there have been 2 tented functions, if increased it may be re-evaluated by the Building Inspector on a case by case basis. • Ms. Flaherty asked for the definition of a lodging house? Also can you tell us where "special events" is included? Mr. Ford answers by stating looking at 1981 permit, it specifies as an "Inn". On the 2003 permit the term "Inn" was used again, not just lodging house. Some inns operate more intensely, some with full restaurants. • Ms. Flaherty asked if the commercial kitchen is still there? Mr. Stier answered yes. • Attorney Stephen Jones representing neighbor (Sagar's) spoke to the increasing and intensification use of the property function requiring a new permit. Only one tent permit was issued prior to this owner and it was for a family wedding. They find no problem with family events or inside use of the building but they feel the outside events are an intensification of the property. Mr. Jones presented pictures that he indicates shows excessive parking and a porta-potty for outside use functions. He also spoke to the fact that they feel that under the special permit, tents are not an allowed use and events are limited to the building itself, inside is no problem but outside ground functions are limited. • Attorney Ford responded that prior to the current owners there was no problem with outside functions. The use of the Inn has not been developed any more than the past. Page 6 of 8 Any other uses (not just tents) must go back to Zoning Board of Appeals. • Mr. Stier stated there have been 4 functions in the last year. Two were small, tented events. Brewster Baptist Church granted permission for parking. Events like this must be held to keep the Inn functioning. • M. Harrison noted that only one permit has been issued. Does a regular outdoor event need a permit or just tented event? Mr. Ford indicated yes, to tented event. Open to public input: • Carol Edmondson (owner of Capt. Freeman's Inn) noted that it is a common occurrence for people to stay at various Inn's but meet at one Inn for a function. She also stated that support of these types of businesses is an asset to Brewster. • Donna Armideo (owner of Capt. Freeman's Inn) noted they have to have functions to supplement income to run the Inn. • Jillian Douglass indicated that license is issued under different offices within the town. They asked what is the capacity of this property? What constraints will take place? It is essential to allow this business to function. Parking must be especially addressed. The Special Permit does not run to adjacent lot. The ZBA should be descriptive in the Special Permit. • Stephen Jones stated that old Captains homes are an asset to the town. They are doing business in a residential zone but what are the limitations. The Board must set some guidelines on the permit of 2003. He does not dispute that events are or were held, but does question the size of those events and where they took place. He also questions the permit of 1981 allowing outside events. As the size of the event increases parking is a problem. Brewster Baptist Church allows parking with traffic supervision. His client is concerned when the number of functions goes beyond the use of the property. They are asking the Board to set limits. • Mr. Ford then proposed we focus on what is before the Board, the appeal of Mr. Staley's decision. They believe it is not the proper interpretation of the bylaw. They don't see a traffic or safety issue. There has only been only one property owner complaint. They are only asking for one thing-address and overturn the decision of the Building Inspector. • Mr. Freeman noted the Board is trying to hear all about establishing guidelines. • Mr. Ford stated if you read the Building Inspectors letter you can rent rooms and serve breakfast and that's it. This was incorrect and it should be overturned. • Mr. Stier noted that the real market for their business is 15-18 people, with not a lot of off- season events. Reunions meet inside, not high intensity. The town mandates parking, health etc. • Mr. Jones then stated the Board should set parameters not just overturn the Building Inspector. Question of use is an expansion of use that the ZBA must define. • Mr. Ford feels the Board has a chance to give directions. Close to public Input: Mr. Harrison made the motion, Ms. Flaherty seconded, all voted aye: 5-0-0. Page 7 of 8 DISCUSSION • Mr. MacGregor notes the Board of Appeals has a lot of latitude. We should give some guidance. Definitely looking toward overturning the Building Inspectors letter and he agrees with Brian that it is non-comforming use. • Mr. Jackson feels the answer here is some place in the middle. Getting a building permit regulates tents; perhaps there are other limits, which can be set. • Ms. Flaherty agrees there is a need to place conditions on outside events. She questions if this is an appropriate way to do this-set limits or uphold the letter and reapply for modification of Special Permit. She said she needs a full understanding of where they are going. • Mr. Harrison feels the Board should overturn the Building Inspectors letter and outdoor events should be allowed. No recommendations to limit scope and size. • Mr. Freeman agrees with other members to overturn Victor Staley's decision but needs to define this more carefully. Re-open to discussion: • Mr. Ford presented suaaested guidelines • Mr. Stier noted, as outside events come up- maximum of 4 tented events (2 each shoulder season) no summer months (July/August). Other outside events-6 off-season. 9:30 curfew for outside events and non-amplified music (no speakers). • Mr. Jones asked if the "book of events" was still being kept? This is a historical use of the property from 1981-2003. • Mr. MacGregor asked if we allow these outdoor events, should we offer a number? • Mr. Jones stated his clients would have a problem with outdoor events. • Ms. Flaherty asked about music for outdoor events? Mr. Stier answered no amplified music for tented events only. • Mr. Freeman asked if 2 outdoor events would be OK? Mr. Stier answered how about 3? • Mr. Freeman asked to refer to #5 - add wording "inside" functions etc. • Ms. Flaherty said she would be fine with overturning the Building Inspector and placing conditions. • Mr. Freeman asked about adding something regarding parking for tented events with police assistance. • Ms. Flaherty asked if it is possible to notify neighbors of these events. • Mr. Jones added that the issue is not 25 persons, however with the tent within 100' of the Sagar's home, a 9:30pm restriction doesn't help much with clean-up taking longer and produces more noise. • Mr. Stier noted there is vegetation between the tent and the home for noise and sight reduction. Page 8 of 8 Motion made by Mr. Harrison to overturn to decision of the Building Inspector and Grant the Special Permit with certain (provided) guidelines. Ms. Flaherty seconded the motion; all voted aye; 5-0-0. Special Permit Granted Guidelines: 1. Use of the grounds for outdoor events (no July + August), maximum 25 people. Tented events (permitted by Building Dept.) 2 per shoulder season (no July+August), maximum 65 people. 2. Events on the grounds have a 9:30pm curfew. 3. Non-amplified music only. 4. Parking assistance for tented events required. 5. Facility can hold and provide services for inside functions attended by guest and non-guests alike. 6. The tent must be no closer than 100' from the property line with the Sagar property. Meeting adjourned at 10:45 PM Respectively submitted by, i yn land 3ers/Clerk Reviewed revised 05-03-05