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HomeMy Public PortalAboutZoning Board of Appeals -- 2005-07-12 Minutes 1 Date approved_Aug 9, 2005 Vote approved _5-0-0 TOWN OF BREWSTER Zoning Board of Appeals Meeting minutes July 12, 2005 OLD BUSINESS • Minutes of the June 14, 2005 meeting were reviewed corrected and amended. Motion made to accept by Mr. Jackson, seconded by Mr. Nixon, all voted AYE 8-0-0. • Chairman Freeman read a letter from Robert McLellan expressing his resignation from the ZBA due to health reasons. Mr. Freemen sent him a letter expressing the Town of Brewster and the ZBA's thanks for his years of service. A replacement request has been made through the Selectmen's Office. • Comprehensive Permit Guidelines sub-committee should e-mail Suzanne any suggestions for changes by August 3. The Committee will discuss and vote on this working document at Aug. 91h meeting. • At the June meeting, the Rodday case questioned the Board of Health license for boarding horses. Mr. Freeman sent a letter to BOH regarding this matter. According to BOH there is NO maximum number as long as they have a license. There are no plans to change this permit process, thus our conditions stand. • On the issue of enforcement of Permits; a letter has been received from the Zoning Agent regarding 300 Foster Road-a Cease and Desist order has been issued until compliance with Permit is determined. NEW BUSINESS 05-08 Mark R. Draymore,41 Captain Dunbar Road, Map 7 Lot 14. Continuance.Applicant seeks a Special Permit under MGL 40-A and Brewster Bylaw sections 179-6(E) and 179-51, to reconstruct stone rip-rap, place fill and install fiber mats, plantings and fencing. 05-09 George Wallis, 47 Captain Dunbar Road, Map 7 Lot 15. Continuance. Applicant seeks a Special Permit under MGL 40-A and Brewster Bylaw sections 179-6(E) and 179- 51, to reconstruct stone rip-rap, place fill and install fiber mats, plantings and fencing. 05-10 Carol M. Edmondson, 51 Captain Dunbar Road, Map 7 Lot 16. Continuance. Applicant seeks a Special Permit under MGL 40A and Brewster Bylaw sections 179-6(E) and 179-51, to reconstruct stone rip-rap, place fill and install fiber mats, plantings and fencing. • All three applications are represented by Attorney Andrew Singer. Mr. Singer has requested a further CONTINUANCE to the August 9, 2005 meeting. • Motion made by Mr. Stewart to accept the continuance as stated, seconded by Ms. Flaherty, all voted AYE (8-0-0). 05-17 Sam Webb and William Balz, 130 Millstone Road, Map 28 Lot 14. Applicant seeks a Special Permit under MGL 40A and Brewster Bylaw sections 179-6(E) and 179-51 to convert seasonal cottages to year-around use. Members to hear this case were Messrs. Freeman, Jackson, MacGregor, Harrison and Stewart. Attorney William Riley represented Mr.Balz and Mr. Webb. Both applicants were also present. Mr. Riley was asked to give an overview of this project. 2 This is a cottage colony that is in the process of being rehabbed in accordance with the current building code. They have been used for year round use for quite some time. The Zoning Agent felt there was not sufficient evidence to support the cottages year round use, therefore this is a change of non-conformity of use. Mr. Riley had met with Victor prior to the start of this project and it was decided as a matter of right if year round residency was shown. OPEN DISCUSSION • Mr. Freeman noted that the advertisement of this applicant was for Special Permit to convert to year round use. • Ms. Trano-Flores (Town Counsel) noted this was a miss-use of advertising and should be continued or heard as Special Permit only. • Mr. Riley stated they would go forward on the Special Permit at this time. Possibly comeback for the issue of overturning the Zoning Agent. • Don McNichol -139 Millstone Road- spoke as to the fact that these cottages have been used for year round use. He has been in Brewster since 1993 and people have always lived there year round. The work being done now constitutes a decided improvement to the property. Septic system was upgraded. He has no objections as an across the street neighbor. BOARD DISCUSSION • Mr. Riley noted that with the change to non-conforming use the applicants believe this constitutes a vast improvement to the neighborhood- property owners not just renters. The use would spread out throughout the year. This is a year round neighborhood. • Mr. MacGregor asked if they would be considered condos. Mr. Webb answered YES. Mr. MacGregor noted there was no plan for parking with each unit as shown. • Mr. Riley stated there was no plan to change the original layout. • Mr. Balz noted there is parking behind units 7-11. • Mr. MacGregor stated a condo needs definite parking plan. He also noted there don't seem to be very much evidence of year round use? • Mr. Riley noted the information before the Board as well as information from tenants who have lived there will be heard. • Mr. Stewart asked if all 11 units were fully occupied? • Mr. Balz noted the majority was used, 2 had no sanitary facilities. • Mr. Freemen noted he had visited the site and they all have facilities now. • Mr. Webb stated that the Zoning Agent was comfortable with the work being done. • Mr. Harrison felt they had not established year round use. • Mr. Riley stated there was no evidence when they were not used year round. Change constitutes detriment to the neighborhood/existing use is same. • Mr. Riley quoted Town Counsels opinion in the Hyman Case (note 12) regarding separate ownership and condominium. • Mr. Jackson asked a clarification; 10 units and minimum zone. • Mr. Riley stated the Zoning Agents opinion condo by right. Issue is not the type of ownership. It meets the minimum lot area. The issue is whether going from seasonal to year round is substantially more detrimental to the neighborhood. • Ms.Turano-Flores stated Note 12 makes a distinction; the lot vs. each building. Hyman case did not qualify Note 12; this case meets the requirements. • Mr. Riley noted that considering previous conditions and now the improvements they are providing opportunity for home ownership. OPEN TO PUBLIC INPUT • Richard Perry- Attorney Perry represented June Kirchgessner in the 90's. When they tried to sell the property, people had to be evicted. There were 2 units used as year round but seasonal people would come and stay until the water was shut off. A condo program would be a wonderful use of the property-a major improvement. 3 • Janice Peterson (5 year resident) each unit was metered for electric and water. Many people lived there a year round basis- some 2-3 years some longer. • Tom Ferraria (Wellfleet). Mr. Ferraria had sent a letter to the Board prior to the meeting. He strongly requests for a favorable vote for homes to be purchased by our younger population to allow then the stay and work and live on the Cape. • Jillian Douglass (Affordable Housing Authority) noted she would speak toward these units becoming 100% affordable housing. A loss of the cottages as rentals would be detrimental to the town on a whole. As condos there is nothing to keep them affordable. She proposes a potential of a deed restriction for affordability. • Mr. Riley noted a Comprehensive Permit application with its many restrictions would not allow the applicant to recoup the money put into this project. There are not enough unit in this project to make this practical and profitable. • William Henchy (neighbor) stated his neighborhood abuts this colony and he has seen significant improvements. He spoke to the fact that through personal experience he knows there were people living there year round in the past. • Cheryl Kimberly (abutter) has concerns regarding parking and traffic. Does each condo get a specific number of parking spots-thus number of cars restricted? Will these units be rented? She noted she depends upon the Board to control this. She is glad to see the improvements to the colony, • Mr. MacGregor asked why not make some of these units affordable? Most things built in density have some use for affordable. People are going to want gardens, areas to keep things. Is a condo manager living on site? • Mr. Riley said the difficulty with affordability is requires sub-division; standard income and square foot requirements. A parking plan can be submitted. Essentially they will be as is. • Mr. MacGregor notes that if the market is keeping it affordable then why not make a few affordable? • Mr. Jackson asked if there is condo association with documentation? • Mr. Webb stated yes, this has already been drawn up. • Mr. Freeman asked if there is the possibility of parking by the "collapsed" garage. • Mr. Riley noted that if this were granted conditions for parking plan would go to the Planning Board. • Ted Guest (resident) noted the people who live there have one car. No one seems concerned with how close they are to each other. • Bern Brock (resident) stated these are affordable and people will now own instead of rent. • Tom Ferraria stated that if they are deemed affordable housing then the owner could not make fair market value if they sell because it is tied to the deed. • Ms. Douglass states there is a deed restriction but sold to another person who can afford it. Quality control on a condo is only through agreement. Terms and conditions in the association and these can be changed by a vote. • Mr. Riley said that the applicants would accept the condition that unit #10 (if it qualifies/standards) would be designated affordable housing unit. This would be significant benefit to the town for year round occupancy. • Ms. Douglass said the standards under state program could be any unit with deed restriction. The future buyer will be guaranteed affordability, • Mr. Stewart asked if there would be any restrictions against rentals? • Mr. Riley stated the declaration of condominium can say anything, then after they are all sold and the owners take over they can change anything. The town does not have any regulations over condo setup, responsibility of developers, or character of buyers. • Ms. Turano-Flores stated there is no cottage conversion bylaw. What is the non-conformity here? Cottage colony in a residential zone, expanding from seasonal to year round due to issue to regulate parking and affordability. The town needs a bylaw. • Mr. MacGregor would like to see 2 units designated affordable. • Paul Bryant (abutter) said these are at a price point that you can afford not affordable. He encourages the Board to make them year round. 4 Close to Public Input; motion made by Mr. Harrison, seconded by Mr. Stewart, all votes AYE (5-0-0) FURTHER DISCUSSION • Mr. Harrison stated the change to year round use is not a detriment to the neighborhood. He is fine with #10 unit designated as affordable. We do need a bylaw to regulate this. • Mr. Freeman feels exactly at Mr. Harrison. He is impressed with how they are taking shape. It is important to have housing that our young people can purchase. • Mr. Jackson agrees we need a town regulation. • Mr. Stewart feels it is not detrimental to the neighborhood. • Mr. MacGregor would like 2 units designated as affordable Motion made by Mr. Harrison to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25-B to convert seasonal cottages to year-around use with condition of designating unit number 10 as affordable housing and provide an appropriate parking plan, seconded by Mr. Jackson, vote PASSED (4-0-1) as follows; Mr. Harrison YES Mr. Jackson YES Mr. Stewart YES Mr. MacGregor NO Mr. Freeman YES Motion made by Mr. Harrison to WITHDRAW w/o prejudice the Appeal to overturn the Zoning Agents decision, seconded by Mr. Stewart, All voted AYE (5-0-0). 05-18 Robert H. Rowley,0 Sheep Pond, Map 34 Lot 41-1. Applicant seeks a dimensional Variance according to MGL40A-10 and Brewster Bylaw 179-52 due to lack of adequate street frontage. • Due to wrong advertisement of case. Motion made by Mr. Harrison to CONTINUED until August 9, 2005, second by Mr. MacGregor, all voted AYE (8-0-0). 05-19. Dana R. Hancock, 102 Yankee Drive, Map 26 Lot 4-5. Applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25-B to replace existing 12 X 12 deck with a 16 X 16-screened porch. Members to hear this case were Messrs. Jackson, Harrison, MacGregor, Nixon and Ms. Flaherty. Mr. and Mrs. Hancock were present. Mr. Hancock was asked to give a brief overview. Mr. Hancock mentioned as per his drawings, they would like to remove the existing deck and replace with a 16 x 16 screened porch. • Mr. Jackson noted that on the plan the bulkhead is 133, the deck is 12 X 12, when extended does 4 feet run parallell to lot 4A? • Mr. Hancock stated it would not be any closer, the new porch is off set 8". • Mr. MacGregor asked if the old deck would be used as the floor? • Mr. Hancock answered NO. • Mr. Harrison asked if there was an old Comprehensive Permit? 1959 changed to RM-any conditions? • Mr. Freeman stated NO 5 Open to Public Input No one heard Motion made to close to Public Input by Mr. Harrison, seconded by Mr. Nixon; all voted AYE (5-0-0) COMMENTS • Ms. Flaherty feels it does not effect adjourning property, she is in favor. • Mr. Nixon in favor • Mr. MacGregor is on board Motion made by Mr. Jackson to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179- 25-B to replace existing 12 X 12 deck with a 16 X 16 screened porch according to Plot Plan of 7-18- 95, seconded by Mr. Nixon, all voted AYE (5-0-0). 05-20. Maura and/or Jeffrey Dey, 76 Pilgrim Pines Lane, Map 5 Lot 149. Applicant seeks Variance under MGL 40A-10 and Brewster Bylaw 179-52 for one lot to become two separate lots. Members to hear this case were Messrs. Harrison, Stewart, Nixon, Freemen and Ms. McInerney. Mr. and Mrs. Dey were present. DISCUSSION • Mr. Freeman asked if there is an apartment in the dwelling? • Mr. Dey stated it is zoned as a duplex- side by side. • Mr. Stewart asked if this is a two-family dwelling? • Mr. Dey said not now, only as one but the property card lists it as a duplex • Mr. Freeman asked if there are 2 kitchen and 2 baths? • Mr. Dey answered NO • Mr. Stewart asks how can we subdivide this lot? • Mr. Freeman says only the Planning Board can sub-divide, we are asked to issue a Variance. • Mr. Henchy (Planning Board Liaison) noted 2 buildings with one lot and no frontage. It does not meet requirements of a Variance. The Planning Board does not approve this. Only the Planning Board can change the line. • Mr. Freeman stated that's the prerogative of the Planning Board, it is pre-existing, non- conforming status. This is not a laid out town road and as such it does not have frontage thus cannot be divided. • Mr. Harrison asked if they considered doing a condo? • Mr. Dey stated YES, 3 units. • Mr. Freeman noted that this property was purchased in 1998. They must have been aware of the situation of one lot with two dwellings. • Mr. Nixon asked if both houses share the same septic system? • Mr. Dey stated NO. Both houses have Title V septic and basements. • Mr. Harrison said he couldn't see any way to meet the Variance. Open to Public Input • Bonnie Chantra (abutter) noted there has never been a problem with these properties. She asked which of the 2 the Dey's would keep. • Mr. Dey noted the larger of the 2. • Mr. Henchy said the Planning Board could not pass the 3 legal conditions of a Variance. The lot is too small; there is no legal frontage on one. • Mr. Freeman noted that the conditions for a Variance are very strict. Hardship is one criteria. 6 Motion made by Mr. Harrison to Close to Public Input, seconded by Mr. Nixon, all voted AYE (5-0-0) DISCUSSION • Mr. Nixon stated the lot was purchased with the knowledge of 2 buildings-doubling the non- conformity-this does not meet requirements. • Ms. McInerney noted that desirability does not make necessity. • Mr. Harrison noted it is what it is....does not meet legal requirements. • Mr. Freeman cannot support this for the same reasons • Mr. Harrison asked if they should be given the opportunity to withdraw w/o prejudice? • Mr. Dey said YES, they would like to withdraw w/o prejudice. Motion made by Mr. Harrison to WITHDRAW w/o prejudice application for a Variance under MGL 40A-10 and Brewster Bylaw 179-52 for one lot to become two separate lots, seconded by Mr. Nixon, all voted AYE (5-0-0). 05-21 Peter Nourse and Yasmin Stem, 140 Marie Cartway(0 Pine Pond), Map 38 Lot 92. Applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25-B to alter/extend a non-conforming structure. Members to hear this case were Messrs. Harrison, Stewart, Nixon, Ms. McInerney and Flaherty. Mr. Nourse and Ms. Stem were present. Mr. Nourse was asked to present a brief overview. This is a small cottage on Pine Pond of 500 square feet. They would like to enclose the present front porch and incorporate it into living area. Being close to the pond they must come to the Zoning Board for a permit. DISCUSSION • Mr. Freeman noted Conservation Commission was to hear this last meeting but due to a quorum issue they are postponed. • Mr. Freeman asked if the porch would have the same roofline? • Mr. Nourse answered YES • Mr. Stewart asked if the front of the house would be where the chimney is? • Mr. Nourse answered YES. • Mr. Nixon noted the new porch increases the non-conformity (Table 2 page 38) does this create a necessity of Special Permit or Variance. • Mr. Harrison says the non-conformity use exists. • Mr. Nourse points out the blueprint shows a few feet less (2.5) bring this back would not increase the intensity. • Ms. Flaherty asked about the proposed patio-flat stone. • Mr. Nourse said this is a Cons Corn issue, Open to Public Input Nothing Motion made by Mr. Harrison to Close to Public Input, seconded by Mr. Nixon, all voted AYE (5-0-0) COMMENTS • Mr. Harrison says it is unusual to vote now but no problem with contingent on Cons Com. • Ms. McInerney finds no problem but intensifying non-conformity net result about 150 square feet. • Ms Flaherty feels it is minimal increase, frontage issue is troubling because we need consistent approval. • Ms. McInerney notes the Board has flexibility as long as they analyze it carefully. Motion made by Ms. McInerney to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25-B to alter/extend a non-conforming structure contingent upon Conservation Commission approval and issuance of corrected site plans, seconded by Mr. Harrison, all voted AYE (5-0-0). Meeting adjourned Respectfully submitted Marilyn Mooers/Clerk