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HomeMy Public PortalAboutZoning Board of Appeals -- 2005-08-09 Minutes Page 1 of 6 Approved 9-13-05 Vote 6-0-0 TOWN OF BREWSTER Zoning Board of Appeals Meeting Minutes August 9, 2005 Members present: H. Freeman, P, Jackson, A. Stewart, B. Harrison and J. Nixon Members absent: S. McInerney, N. Flaherty and B. MacGregor. Meeting brought to order at 7:00 PM OLD BUSINESS ■ Compliance of Permits - as an issue with the Building Inspector- more cases may be coming up in the future. ■ Comprehensive Permit Working Document-has been reviewed and will be discussed at the end of the meeting. Guidelines to concern ourselves with for future Comprehensive Permits. ■ Minutes of the July 12, 2005 meeting were reviewed, corrected and amended. Motion was made by Mr. Nixon to accept as corrected, seconded by Mr. Stewart, all voted AYE 5-0-0. NEW BUSINESS 05-18 Robert H. Rowley, 0 Sheep Pond, Map 34 Lot 41-1. Continuance.Applicant seeks an appeal of the Zoning Agents decision in accordance with MGL 40A-8, 14 and or a dimensional Variance under MGL 40A-9 and Brewster Bylaw 179-52 due to lack of adequate street frontage. Members to hear this case were Messrs. Jackson, Harrison, Stewart, Nixon and Freeman. Attorney Richard Perry represented the Rowleys. Mr. and Mrs. Rowley were present. Mr. Perry was asked to give an overview of this application. To address the issue of the appeal first; Basically, the question concerns what the Planning Board, in 1975, and the Rowleys intended by carving out an approximately 40,000 square foot pond-front lot from a much larger acreage adjacent to Sheep Pond. Access to Glenn Rowley's home was via an ancient cartway about a mile long leading from Route 137 to the Pond with a turn around circle, which provided frontage. The Planning Board was concerned about adequate frontage for Robert Rowley's 40,000 square foot lot, which, at that time met the requisite area for a buildable lot, but lacked frontage on a recognized way. The Planning Board designated two members of the Board to investigate this frontage issue, but no evidence was available in later Minutes of the Board as to what was decided. Robert Rowley then hired Schofield Bros. to complete a plan of the 40,000 square foot lot, which was then filed in December of 1975. An ANR filing was approved by the Planning Board in early 1976 which was interpreted by the Planning Board to be a perimeter plan without any implications regarding the adequacy of such zoning considerations as area or frontage on proposed building plans. Subsequently in 2003, Robert Rowley inquired about constructing a home on the 40,000 square foot lot and was told that although frontage was now available Page 2 of 6 through a series of lots retained along the northern edge of the acreage, due to an increase in the area requirement in this zoning district, the lot no longer met the area requirement and was therefore considered not buildable. Town Counsel rendered this opinion by letter of March, 2003 by Edward Veara but stated that if further evidence came to light he might reconsider. Sarah Turano-Flores (Town Counsel)was asked to respond; this is a very complex issue. An opinion letter by the Planning Board in 1975 based on the Corrigan case; subdivision creation of 2 or more lots approved as an ANR makes the determination of access applicable. The Rowley property is one lot- single lot as ANR. With this the Corrigan case does not apply. Board Discussion ■ Mr. Freeman asked if the Planning Board did not intend a perimeter plan. • Mr. Perry stated it was not a perimeter plan, should be considered a subdivision-a division of a tract of 2 or more lots. ■ Mr. Freeman noted that in Mr. Perry's material (minutes of Jan 6, 1976)the quote was perimeter plan. Obviously approved as a perimeter plan. • Mr. Perry-term not used in the law-used by surveyors. Not new boundaries ■ Mr. Nixon noted according to subdivision plan 2002 (approved by the Planning Board) there appears to be existing frontage. ■ Ms. Turano-Flores said that by today's standard he has the frontage not the area. Grandfathered in 1975 he had area but not frontage. • Mr. Nixon noted that record keeping in 1975 was not very good but there were 3 specific statements to this issue. ■ Mr. Perry agreed that the frontage was increased. There was correct frontage and area but the Planning Board did not state that. ■ Mr. Freeman stated that in 1975 they didn't have frontage but area was sufficient, now we have frontage but not area. Should have both at any one time. ■ Mr. Perry asked what this board decides would probably not effect any other lot in Brewster. Open to Public Input ■ Mr. William Henchy(Chairman of Planning Board) stated that this was approved as a perimeter plan in 1975. There is a statement in the minutes about the adequacy of the path. It did not convey buildability because of the lack of frontage. Buildability means frontage and size- if it does not meet this it is a Variance issue. Motion made by Mr. Jackson to Close to Public Input, seconded by Mr. Nixon, all voted AYE (5-0- 0) Further Discussion ■ Mr. Jackson stated that one has to have sympathy for the Rowley's but it is hard to go against the Zoning Agent,Town Counsel and the Planning Board. ■ Mr. Stewart said his feelings are similar to Mr. Jackson. Both parties presented strong arguments but he feels not strong enough case to over rule the Zoning Agent. ■ Mr. Harrison stated this was intended to be a buildable lot but they do not have enough evidence to be punished by past lack of records. ■ Mr. Nixon said; if the Rowleys had built in 1975 there would be no problem. We are talking 30 years ago and with 2 affidavits he feels we should approve and over rule the Zoning Agent. ■ Mr. Freeman noted that in the initial phase he felt the question is did the Zoning Agent act properly with the information given to him. If we uphold the Zoning Agents decision then relief can be given in another manner. Page 3 of 6 ■ Mr. Nixon said you have to stretch a point one way or the other but look on the basis of applicant- right what was wrong. A Variance would be a stretch as well. ■ Mr. Stewart noted that's speculating that would have been approved. ■ Mr. Nixon noted that records are lacking ■ Mr. Perry stated that decisions of the Board of Appeals from 1971-1977 did not address frontage questions until the late 70's. Planning Board discussed roads but Board of Appeals did not use frontage as an issue. ■ Ms. Turano-Flores noted that Town Counsel perspective is that if approval is to be granted, it should be as an overrule of the Building Inspector rather than a Variance. ■ Mr. Perry stated that Victor Staley's decision (Zoning Agent) was made with initial Town Counsel opinion 2 years ago. ■ Mr. Jackson said 2 points have been made; did Mr. Staley make the correct decision with the information he had or information to grant a Variance. ■ Mr. Henchy noted that perhaps a proposal should go to Planning Board to rezone(spot zoning) at fall town meeting. ■ Mr. Stewart said that his personal opinion is that they do need to grant these people relief. ■ Mr. Harrison said that as a Zoning Agent he would have taken the same route to send this to ZBA. With further evidence he would feel comfortable righting a wrong. ■ Mr. Freeman noted his opinion is changing with additional information. Mr. Nixon made a motion that in reference to case 05-18 Robert H. Rowley, 0 Sheep Pond, Map 34 Lot 41-1 the Zoning Board of Appeals GRANT to overturn the decision of the Zoning Agent in this case due to further information that has come to light and justification of this issue over the last 30 years. We also make note that this is "case specific". Motion seconded by Mr. Stewart, All voted AYE (5-0-0) Mr. Perry stated he would withdraw without prejudice the Variance part of 05-18. Motion made Mr. Harrison to withdraw w/o prejudice this Variance, seconded by Mr. Nixon; all voted AYE (5-0-0). Ms. Flaherty arrived at approximately 7:45, having given prior notice that she would be late. 05-08 Mark R. Draymore, 41 Captain Dunbar Road, Map 7 Lot 14. 05-09 George Wallis,47 Captain Dunbar Road, Map 7 Lot 15. 05-10 Carol M. Edmondson, 51 Captain Dunbar Road, Map 7 Lot 16 Motion made by Mr. Harrison to GRANT CONTINUANCES for the above 3 cases until the September 13, 2005 meeting of ZBA, seconded by Mr. Stewart. All voted AYE (5-0-0). CONTINUED 05-22 Steven Allard,9 Millstone Road, Map 42 Lot 14-102.The applicant seeks a Special Permit under MGL 40A and Brewster Bylaw section 179-5 (E) to extend the use of Commercial portion of the lot into that of the Residential portion. Members to hear this case were Messrs. Jackson, Harrison, Stewart, Nixon and Ms. Flaherty. Mr. Allard was present and was asked for a brief overview of his request. Mr. Allard noted that he would eventually like to build a commercial building with office space, there are no current plans. He would like to have the lot uniformly zoned. Discussion Page 4 of 6 ■ Mr. Harrison asked if there are any requirements for screening if it borders on residential area. ■ Mr. Nixon asked what are the plans for the lot? • Mr. Allard said an office building in the future. Open to Public Input • no comments Mr. Harrison made a motion to Close to Public Input, seconded by Ms. Flaherty; all voted AYE (5- 0-0) Further Discussion ■ Mr. Jackson noted that on page 18 of the codebook this is clear to change. ■ Mr. Harrison asked if some kind of screening could be placed between commercial and residential as it abuts residential use. ■ Mr. Allard noted there is a 527-foot line and the building will not be close. ■ Ms. Flaherty said she was in favor of some sort of natural vegetative screening as well ■ Mr. Stewart added that it would be so the resident of the house doesn't have to look at the building. • Mr. Nixon agreed Mr. Harrison made a motion to GRANT the Special Permit with the condition the applicant screen the length of the structure on the lot line between commercial and residential buildings with natural vegetation, Mr. Stewart seconded, all voted AYE (5-0-0). SPECIAL PERMIT GRANTED with conditions. 05-23 Richard and Theresa Winslow, 3643 Main Street, Map 11 Lot 32. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw section 179-25 (B) to demolish the pre-existing non-conforming retail establishment and rebuild with a mercantile store including a garage and an overhead apartment. Members to hear this case were Messrs. Harrison, Stewart, Nixon, Freeman and Ms Flaherty. Mr. Richard Winslow was present. Also representing the applicant were Mr. David Dovell (designer) and Mr. David Clark(Evergreen). Mr. Dovell gave brief overview of the project. This is a currently pre-existing non-conforming building on a lot. Both HDC and Conservation have approved the new design and parking plan with exit on the west end of the "island" and entrance only on the east. Signs will be erected accordingly. Discussion • Mr. Freeman asked if all buildings would be torn down? • Mr. Winslow answered YES- house, store and garage. • Mr. Nixon asked who would occupy the apartment? • Mr. Winslow said he and his wife making it accessible to the store through the garage ■ Mr. Freeman; the setback from the road? ■ Mr. Clark noted the existing house is 15', the proposed building will be 32.4'. • Mr. Freeman asked if there was a problem with the parking? ■ Mr. Clark said YES; this is a state highway layout. Page 5 of 6 ■ Ms. Flaherty asked about "the island" ■ Mr. Clark stated the state wants that and it is control of the access point. It seems much better for line of sight. ■ Mr. Freeman asked for a capsulation of Cons Com conditions. • Mr. Clark said drainage was an issue-storm water maximum catch basin in the parking lot and gutters and downspouts to drywells. There will be a roof over the dumpster. A second retaining wail will be removed and left natural. Title V is fully compliant. Lighting is at proper wattage. Invasive species will be removed. ■ Mr. Freeman asked if the redemption shed would be closed and locked. • Mr. Winslow said it is separate building by Pine Harbor. ■ Mr. Freeman asked about the height of the building. ■ Mr. Dovell noted just less than 30'. ■ Mr. Freeman asked about handicapped parking. ■ Mr. Dovell said it is not required but there will be easy access to the store. Open to Public Input • No comments Mr. Harrison made a motion to close to Public Input, seconded by Mr. Nixon; all voted AYE (5-0- 0). Further Discussion ■ Board made note that this is an improvement to the property, reduces the non-conformity and makes the parking situation safer. Motion made by Mr. Stewart to GRANT Special Permit under MGL 40A-9 and Brewster Bylaw section 179-25 (B) to demolish the pre-existing non-conforming retail establishment and rebuild with a mercantile store including a garage and an overhead apartment based on the latest site plan, seconded by Mr. Harrison, all voted AYE (5-0-0). 05-24 Stephen F. Kovach (DBA Windswept Custom Homes), 14 Gilbert Road, Map 7 Lot 138.The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25 (B)to replace a pre-existing, non-conforming dwelling with a new dwelling and attached garage. New dwelling side setback is to be 20.5' and 16.5'. Rear setback is to be 22.5'. Members hearing this case were Messrs. Nixon, Jackson, Harrison, Stewart and Ms. Flaherty. Ms. Elizabeth Kovach represented the owners of the property Mr. and Mrs. Durham. Ms. Kovach presented a correction to the materials presented at filing; rear setback is 59.9' (back porch to lot line), house setback is OK, 31' issue is the garage. Cons Com approval on 7/19-back undisturbed Septic is under gravel driveway HDC approval on 7/11/05 This will be a fulltime year round residence with a 2 car garage. Garage is 39' off the road. 21 x 26 requested, 21 x 22 (35' setback) proposed. Discussion • Mr. Stewart noted this shifts the non-conformity ■ Mr. Jackson asked if HDC likes the smaller size garage? ■ Ms. Kovach stated they were trying to appease the neighbors and HDC Open to Public Input Page 6 of 6 ■ Patricia Ellis(abutter) concerned about the end of the garage as a blank wall. She suggests screening or plantings. The 16,5' doesn't concern her but should be a "softer" look perhaps trees or foundation plantings. • Ms. Kovach said HDC minimized it without denying the garage. ■ Matthew Leonard (neighbor to the west). feels that it is not fair to build that close to the road. Other houses conform to the setbacks. His question is regarding drainage-it is a flood area. Raised elevation doesn't drain on his property. ■ Ms. Kovach added they could have added on rather than rebuild. Setback is because of the septic requirement. ■ Ms. Ellis asked if septic effects the lot on the other side. ■ Ms. Kovach stated to a minimum Motion made by Mr. Jackson to Close to Public Input, seconded by Mr. Nixon, all voted AYE (5-0- 0) Further Discussion ■ Mr. ]ackson sated it is the same non-conformity but seems like a nice plan. ■ Mr. Stewart in favor, not detrimental to the neighborhood • Mr. Harrison feels it decreases the non-conformity ■ Ms. Flaherty noted it is a definite improvement but what is the thinking of tear down to rebuild as part of 179-25(B) ■ Mr. Jackson said even if it is a tear down it doesn't mean you lose that. • Ms. Flaherty said on what grounds ■ Mr. Stewart stated demolition keeps old setbacks and frontages-grandfathered- case law in Massachusetts's demolition is protection. ■ Mr. Harrison said Martin vs., Yarmouth ■ Mr. Nixon asked if the abutter to the east most closely effected. Hope the Durham's take the extra step to screen the garage wall. Motion made by Mr. Jackson to GRANT the Special Permit under MGL 40A-9 and Brewster Bylaw 179-25 (B)to replace a pre-existing, non-conforming dwelling with a new dwelling and attached garage. Granted in accordance with the site plan dated 6/17/05 with proviso regarding depth of garage 26'to 22' (submitted drawings) increasing distance to Gilbert Road from 31'to 35' and screening shrubs on the east side of garage appropriate to height. Finding made not more detrimental to the neighborhood. Seconded by Mr. Nixon, all voted AYE (5-0-0). Comprehensive Permit Revision as a Working Document ■ obliged to have guidelines ■ corrections to be made on fee structure (page 4) Motion made by Mr. Stewart to ACCEPT document as Guidelines, seconded by Mr. Harrison, all voted AYE (6-0-0). Election of ZBA Officers for 2005-06 ■ Chairman- Motion by Mr. Stewart to nominate Mr. Freeman (accepted), seconded by Mr. Harrison, all voted AYE(6-0-0) ■ Vice-Chair- Motion made by Mr. Stewart to nominate Mr. Jackson (accepted), seconded by Mr. Harrison, all voted AYE (6-0-0) ■ Associate members must be sworn in by Board of Selectmen Meeting adjourned at 10:00pm Page of Respectfully submitted Marilyn Mooers/Clerk