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HomeMy Public PortalAboutZoning Board of Appeals -- 2005-12-13 Minutes Page 1 of 12 Date approved 1-10-2006 Vote 8-0-0 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes December 13, 2005 Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were; Brian Harrison, Paul Kearney, John Nixon, Philip Jackson, Harvey Freeman, Arthur Stewart, Suzanne McInerney, Neva Flaherty and Bruce MacGregor. OLD BUSINESS ■ Thanks you to Phil Jackson for Chairing the last two meetings and to the Board for their cooperation while Harvey was away. ■ Tow of Brewster Holiday Party notice given to all members. ■ 2006 Zoning Calendar given to all members. ■ Housing partnership letter given to all members. ■ Minutes of November 8, 2005 meeting were presented. Motion made to accept was made by Mr. Stewart. Seconded by Mr. Nixon. Voted 8-0-1. NEW BUSINESS 05-28. James Hadley for M/M Joseph Carty, 42 Konohassett Cartway, Map 41 Lot 11. requests by Attorney Dwayne Landreth to CONTINUE until January 10, 2006. Motion made by Mr. Stewart. Second by Mr. Harrison. Vote 9-0-0. 05-45 Silsupa Kelley, 2655 Main Street, Map 15 Lot 107. CONTINUANCE.Applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25 (B) to amend Special Permit 90-25. They wish to increase the seating at the establishment from 8 to 25. Continue until January 10, 2006. Motion made by Mr. Harrison. Second by Mr. Stewart. Vote 9-0-0. 05-33 Louise J. Kelly, 62 Weathervane Way, Map 12 Lot 3. Continuance Applicant seeks an appeal of the Zoning Agents decision, a Special Permit and/or a Variance in accordance withMGL40A-8 and 14 and Brewster Bylaw 179-52 Table 11, Notes 3 and 4 with less than 30' setback for corner lot. Members hearing this case were Messrs. Harrison, Stewart, Nixon, Jackson and Ms. Flaherty. Town Counsel has written a clarification of original opinion written February 1, 2005 as per request of the ZBA dated November 21, 2005. Attorney Richard Perry represented Mrs. Kelly. Mrs. Kelly was present at the meeting. Mr. Perry continued with an overview of the past procedure. ■ Special Permit has been withdrawn ■ This will be presented as a Variance issue ■ Keeping the trees, as a buffer, is no longer an issue as they were all destroyed in the storm of December 9, 2005. ■ Mr. Perry presented a booklet of materials to the members hearing this case. Page 2 of 12 Mr. Perry explained this project would like to add to the existing cottage rather that demolish/raze. This would make it an 1800 square foot home with new addition all on one floor. Cost difference to demolish and rebuild could be at least $45,000.00. Variance Criteria; 1. Substantial Hardship due to money and the medical (arthritis) condition of the applicant. Mr. Perry discussed 3 case studies pertaining to this issue; a)Johnson vs. ZBA in Wareham- cost to demolish vs conversion. b)Wolfman vs. ZBA in Brookline and c) Pauling vs. Charlotte Hevens. 2. Topographically- peculiar to have street on 3 sides. House located far from Weathervane Way as 36' from the edge of the road. Lot slopes about 6' in the back of the house. Walkout basement is planned on the East side due to the slope. Building toward the North intrudes on the neighbor. 3. Detriment to the Public Good-neighbors are in favor of this rebuild and HDC has approved the design. 4. Intent of the Bylaw-discussion of through lots, corner lots not 3-sided lots. Town Counsel has said they must abide by 30' setback. No site line problems. The intent of the Bylaw is absent. Mrs. Kelly noted that a great deal of effort has been put into the design to add on rather than demolish and rebuild. She feels they need space on one floor due to the age and health issues of the applicant. She wants to maintain the cottage feel and keep within the attractiveness of the neighborhood. DISCUSSION OF THE BOARD x Mr. Harrison asked how the abutter directly across feels. ■ Mrs. Kelly stated all abutters are fine with this renovation. Mr. Stewart noted the cottage would go from 650-sq. ft. to 1800 sq. ft. To meet the 30' setback is about 140 sq. ft or a 10 x 14 room. A suggestion might be to remove the room on the end. Mrs. Kelly said losing a room is really not an option, she needs another bedroom and entrance as well as common living space. With a larger family and changing lifestyles more space is required. ■ Mr. Perry said they had tried moving rooms but it didn't work out. This is the best design with the concept of a larger side yard than front yard giving privacy to the neighbors. ■ Ms. Flaherty said that after looking at the design you could take 10' off the side(closet)and still have as much living space. ■ Mrs. Kelly said the plan has an open feel. If this were to be cutback they would not get this concept. ■ Mr. Jackson said a Variance is not for aesthetics. Rules must be applied. ■ Mr. Nixon noted there seems to be a discrepancy of the paper road layout vs. edge of the road Open to Public Input ■ No one spoke to the issue Motion made by Ms. Flaherty to Close to Public Input. Second by Mr. Stewart. Vote 5-0-0. FURTHER DISCUSSION/THOUGHTS ■ Ms. Flaherty felt the conditions of a Variance have not been met. She is sympathetic but that is not grounds to issue. Standards must be met. ■ Mr. Jackson noted certain guidelines must be met with rules to abide by. This is difficult to approve on nice. It would be a bad precedent to set. f a =E :2 .i R Page 3 of 12 ■ Mr. Stewart agrees with Mr. Jackson. This is a convenience rather than a hardship. There are options. ■ Mr. Harrison feeds he cannot add anything to what has been said. ■ Mr. Nixon agrees with the Board. There is room to set the house correctly. Motion made by Mr. Jackson in regard to 05-33 Louise J. Kelly, 62 Weathervane Way, Map 12 Lot 3. seeks a Variance in accordance withMGL40A-8 and 14 and Brewster Bylaw 179-52 Table 11, Notes 3 and 4 with less than 30' setback for corner lot that the Variance by DENIED as all criteria were not met. Mr. Nixon seconded. All voted AYE (5-0-0). Motion made by Mr. Stewart to accept the withdrawal of the Special Permit. Second by Mr. Harrison. Vote 5-0-0. 0-383ohn L. Hooper, 10 Nancy May Path, Map 7 Lot 11-1. CONTINUANCE The applicant seeks a Special Permit and/or a Variance under MGL 40A-6 and Brewster Bylaw Article II, Section 179-6; Article VIII, Section 179-25, Paragraph A and B; and Article X, Section 179-51 to alter, extend and replace a pre-existing, non-conforming single-story dwelling with a two-story dwelling. 05-39 James E. Walsh, 16 Nancy May Path, Map 7 Lot 11-2. CONTINUANCE The applicant seeks a Special Permit and/or a Variance under MGL 40A-6 and Brewster Bylaw Article II, Section 179-6; Article VIII, Section 179-25, Paragraph A and B; and Article X, Section 179-51 to alter, extend and replace a pre-existing, non-conforming single-story dwelling with a two-story dwelling. Members hearing these cases were Messrs. Harrison, MacGregor, Jackson, Nixon and Kearney. Mr. William D. O'Brien of Singer and Singer represented the applicants. Both cases will be considered together as the nature of the application is the same. Mr. John Hooper and Mr. Robert Perry (Engineer) were also present for questions and discussion. Mr. O'Brien gave an overview of the application. Each application is for a Special Permit to alter and change a single story dwelling with a 2"d-story added to the same footprint. The homes will be moved to meet conditions of the Conservation Commission; #10 Nancy May Path - remove the side setback non-conformance by shifting about 3 feet, #16 Nancy May Path shift about 7 feet will remove side setback non-conformance. Second story will double the square footage of the home. Plan revision was approved by HDC and Cons. Com. DISCUSSION ■ Mr. Nixon asked according to Tab 7- are the footprints the same. ■ Mr. MacGregor said that the presentation shows the property as a condo- have lots been delineated. ■ Mr. O'Brien said amendments to the master deed noted exclusive use areas. ■ Mr. Perry noted they are condominium by deed with land areas as lots, ANR lots, and changes are much more complicated with reference to setbacks and restraints. There is confusion as condos or lots. Beach is common area. ■ Mr. Freeman noted Town Counsel determined there were lot lines. Ten cottages (2 already done), 2 under the same restrictions in 2004. ■ Mr. O'Brien said the ones in 2004 with lot lines were recorded at the registry. ■ Mr. Harrison noted if they were created by ANR- doesn't the applicant need a Variance. i i Page 4 of 12 ■ Mr. O'Brien said they were a Condo not ANR. Same as Kingfisher Cartway. Town Counsel made an opinion to use as lot lines for setback purposes. They feel they should proceed in a Special `} Permit format. ■ Mr. MacGregor asked about the plan marked "division of land". Plans were shown by Mr. Perry dated 10-18-2002; modeled after Kingfisher Cartway to clarify confusion. Mr. O'Brien noted there seems to be confusion between Condo or ANR. ■ Mr. Freeman said it is between lot lines with equal setbacks. ■ Mr. O'Brien note 10 Nancy May Path will shift to the west 3-3.5 feet, conform to side to 25 feet thus decreasing nonconformity. No new nonconformity, no existing nonconformity extended. Each to bring back from coastal resources. k Mr. Harrison said if this was created by ANR- not nonconforming pre-existing by lot line-then a Special Permit is in effect. Mr. MacGregor asked if the Board should consider a Continuance with respect to the information ■ that was presented tonight by abutter's letter regarding condominium. ■ Mr. Harrison feels this should be continued. ■ Mr. Freeman said this has been done before. ■ Mr. Nixon said he would like to consider the input from abutter. ■ Mr. Kearney noted it is more involved than it initially appeared. ■ Mr. MacGregor would like it to go back to Town Counsel with the question on both issues (Condo issue as well as zoning). He feels the Board should consider the past opinion of Town Counsel of Kingfisher Cartway(ZBA cases 04-03 and 04-02). Motion made by Mr. Jackson to CONTINUE 05-38 and 05-39 until February 14, 2006 to request review of current application with reference to similarity to Kingfisher Cartway(ZBA 04-03 and 04-02) and request of Town Counsel review. Second by Mr. Harrison. Vote 5-0-0. 05-43 Wayne H. Hyman-Trustee, Cranberry Cove Cottages Nominee Trust,3671 Main Street, Map 11, Lot 25. Original application 04-53 seeking a Variance in accordance with MGL 40A section 10 and Brewster Bylaws 179-52 and/or Dimensional Variance under section 179-16, Article V, Footnote 12. Remand by the Commonwealth of Massachusetts, Land Court Department, Misc. No. 308318, dated October 14, 2005, the Board is to determine solely the issue of seasonal vs. year- round use. Attorney John McCormack was representing Mr. Hyman. Mr. Wayne Hyman was present at the hearing. Mr. Freeman noted this was a remand by the Land Court of the State of Massachusetts, Barnstable County to only determine year round occupancy. Land court will keep custody and will determine the issue further. ` Members hearing this case were Messrs. Freeman, Harrison, MacGregor, Jackson and Ms. McInerney. Mr. Freeman noted the previous decision requested seasonal vs. year round evidence. Only 2 were received but with a change of representation there was considerably more information presented. Attorney McCormack and Mr. Hyman gave a brief overview. The court retains restriction and they have presented as much information as possible. Tab 12- Mr. Winslow- letter states year round use Tab 13-Tim Winn-direct abutter-year round use Tab 14-Timothry Quinlan-resident of Cottage #2 Tab 15-Bryan J. Jenkins-resident of Cottage #4-since 1988 Tab 16-Robert Lee-resident of Cottage #7 for 3 years Tab 17-Karen Densmore-resident since 2001 s g Page 5 of 12 Tab8-requested by the Board-leases-Mr. Hyman converted all to tenant at will-not long term leases-it is easier for the people to get out of with 1-month notice. Cottage#5-su mmer only- not heated. Tab 9-Evelyn Salvatore-realator More objective criteria Tab 2- N-Star Tab 3- Comcast Tab 4- Keyspan- unit 1 and 6 have electric heat Tab 6- BFI Tab 7- NTT Landscaping Tab 5-Water Department (refer to Tab 1 page 4) Telephone provider (privacy laws) but most use cell phones Cottage #5- is NOT year round QUESTIONS FROM THE BOARD ■ Mr. Harrison asked if use was legally commenced ■ Mr. McCormack stated he was not aware of seasonal or year round restriction in the Town of Brewster. ■ Mr. Jackson spoke to the fact that we only have one question before the Board-year round use. ■ Mr. Freeman also spoke to the fact that the Board can only discuss what has been remanded. ■ Ms. McInerney asked if there was any relationship between 05-43 and 04-44. ■ Mr. Freeman answered they are separate issues with the same applicant. Second- NONE. NO VOTE (motion out of order). Motion made by Mr. MacGregor; the testimony before the Board for year round use meets the criteria as stated. Second by Mr. Jackson. Vote 5-0-0. Year round use GRANTED. ■ Ms. Jillian Douglass asked why there was no Public Input. ■ Mr. Freeman stated this was not an Appeal/Special Permit or Variance. 05-41 Brewster for the Holidays Committee of the Brewster Chamber of Commerce. The applicant seeks a Special Permit in accordance with MGL 40A-9 and Brewster Bylaw 179- 20.5 E- 5 to display flags and banners at various town, commercial and residential locations from the day after Thanksgiving until the second Monday in December. Members hearing this case were Messrs. Stewart, Harrison, MacGregor, Jackson and Ms. Flaherty. No one was present to represent the applicant. Chairman, Mr. Harvey Freeman represented the applicant. DISCUSSION ■ Mr. Freeman stated the Building Inspector sent this applicant to the ZBA to insure the sign Bylaw is adhered to. He was suggesting a five-year permit for consideration. Motion made by Mr. MacGregor to GRANT a Special Permit for five years to display flags and banners at various town, commercial and residential locations from the day after Thanksgiving until the second Monday in December. Second by Mr. Harrison. Vote 5-0-0. k Page 6 of 12 NOTE: Mr. Harrison made the suggestion the Town Bylaw be change to allow the Selectman to make decision on allowing Town Event sign permits. (does the full Board agree with this recommendation) 05-42 Steven +Janet Albahari and David + Andrea Cataldo, Lots 10 + 11 Doran Drive, Map 23 Lot 67. The applicants seeks an Appeal of the Zoning Agents decision under MGL 40-A-8 section 15 and Brewster Bylaw 179-6 (B) to issue a building permit for a single family dwelling within Wetlands Conservancy District. Members hearing this case were Messrs. Stewart, Harrison, MacGregor, Nixon and Freeman. Attorney Peter Farber representing the appellants. Mr. Albahari was present. Attorney Walter McLaughlin representing Lucille Owocki Mr. Faber presented the Board with a handout Mr. Farber was asked to give an overview. (The following transcript is verbatim from the tape recording of the hearing-Tape 3, side A- 177). Mr. Farber: "one thing I would like the Board to consider possibly is not to make a decision tonight because some of these issues are involved and I do have some case law there that I think would assist the Board is reaching a decision but we will get to that later. Let me say this, this is, as I am sure you all know the Board of Appeals wears the hat of exercising discretion for instance as a Special Permit other times when its an appeal of a Building Inspectors decision granting a building permit or the Board actually sits just as a court of law because a zoning bylaw just as any other statute is ultimately determined by a court and at the town level that's the Board of Appeals and I feel as if I am sitting in court today and I am going to treat this as if I were. " "The matter before you has to do with a lot on Doran Drive. Doran Drive is on the northerly side of 6A; it started out an eleven-lot sub-division approved by the Planning Board in 1971. The lot in question this evening is really a Lot 11. I believe there is pending or maybe already issued a building permit for Lot 8. The Appeal is of the Permit issued for Lot 11 in September. Lot 11 (refer to a plan) is a house and it is the exact plan compared to the permit that was---- back in the year 2000 and that permit also came before this board. It is the exact same application, the house same location on the lot. The first document in your handout is a Stipulation that was entered into by myself and Attorney McLaughlin, representing the Owocki's in the Superior Court action in 2002. Attached to that stipulation is an Agreed Statement of Facts. " 'This is a condensation of the whole matter. Lot 11, at least by my knowledge, is still owned by Lucille Owocki. I believe, since the Building Permit was applied for by Reef Realty, I believe that Mrs. Owocki has this under a purchase and sales agreement with Reef Realty. The plaintiffs,who were in the Superior Court suit, and are before you today are the owners directly abutting, across the street or also directly behind Lot 11. With me today is Steven Albahari the abutter directly across the street. Because this Permit or matter was before you in 2000 and it did go to court a lot of what may control your decision today is what happened in that court action. I am going to go through the history of that so that were all in tuned and up to speed. ■ In September of 2000 Mrs. Owocki or her agent applied for 2 building permits for Lots 8 and 11. ■ The Building Inspector at the time, determined that the land was in the Wetlands Conservancy District. Under section 179-6B of the bylaw; building of either commercial or residential building is prohibited in a wetlands conservancy district. Mr. Thyng denied the permit application. The Owocki's appealed that decision to this Board. This Board decided unanimously based on the only testimony that was before then that evening that the Building Inspector had erred in his Page 7 of 12 determination. The only evidence before the Board was supplied by a Soils Scientist hired by the Owockis, his name was Peter Lockwood." (A copy of his decision is in the file). ■ "Mr. Lockwood said NO, it's none of the soils that are listed in Section 179 of the Bylaw. It is a soil called Amostown. Amostown is not on the list of prohibited soils therefore Mr. Thyng made a mistake in denying the permit. Now what Mr. Lockwood did not tell the Board is that this term "Amostown" was from a different nomenclature, that had been adopted after our Bylaw was adopted in 1974. If the Board had known that Amostown was a new term the Board would have asked Mr. Lockwood -looking at the terms in our Bylaw is that related to one of the prohibited soils? If he had answered honestly he would have said yes, very related... " (INTERUPTION BY ATTORNEY McLAUGNLIN)..... "Mr. Lockwood would have said YES, Ningret is a very, very close cousin to Amostown. Ningret appears on the list of prohibited soils. But this Board having only the evidence that Amostown is the soil on the lot, overruled David Thyng but did not order the permit be issued. The decision in 2000 overruled the Building Inspector. ■ Mr. Albahari and other neighbors on the street appealed that decision to the Superior Court. While that case was pending, the Town of Brewster updated its nomenclature. The very person that assisted the Board in writing the first Bylaw, a man named Peter Fletcher, advised David Thyng as to what the new nomenclature was. In November of 2001 the town adopted the new nomenclature to update its Bylaw. Amostown appears in the list of prohibited soils. ■ When the case came to trial, I had two choices; we could either argue that Board had been misled at the first hearing and since it's a NO vote hearing we would have been arguing that we had our soils scientist that this soil on these lots (8 and 11) is Ningret, using the name that was in place in 2000 when the matter was decided by Mr.Thyng and by this Board. I made a mistake probably because I said the Town has amended the Bylaw, the permit was never issued and therefore there are no protected rights. The new Bylaw applies. ■ Mr. McLaughlin and I submitted the case to the judge on that basis and that was the basis of the Stipulation and the Agreed Statement of Facts. ■ The judge ruled that the new Bylaw did not apply. We appealed that decision. The Appeals Court did not decide the precise issue. The Appeals Court decided (copy before you) that the two attorneys could not frame the issue as we did. That was beyond the jurisdiction of the court to hear it in that manner, under Chapter 40A, section 17 a court, whether Superior Court or the Land Court, that hears a Zoning appeal, is limited to looking at your decision and deciding a number of things; was it beyond your authority, was it arbitrary or capricious. ■ The Appeals Court said since the only facts that were before you the evening of your hearing was that it was Amostown soil in the ground, your decision overruling David Thyng was not arbitrary. Therefore on that ground the Appeals Court affirmed the decision; leaving for another day a determination as to whether the new Bylaw applies to this case.... and that brings us here today. ■ Mr. Staley is of the opinion that the Appeals Court decision control what he had to do. I will give you reasons today as to why it does not control. I would like to go through the packet and explain why I have included certain documents in the package and then coming to the Appeals Court decision." DISCUSSION ■ Mr. MacGregor notes if we were to decide just on that issue, if we were to agree with the court. What was decided by our hearing, that was 5 years ago, was on that soil issue. If the court says we made a good decision on that. That soil was not on the list, thus the permit could be issued. If any other issue is brought forward it is past its 21-day appeal. You can't just start a new appeal 5 years later. ■ Mr. Farber said the Building Permit was never issued, it was just issued a month and a half ago. A Special Permit when issued is effective then. If the town changes the Bylaw after the permit is issued that person is protected. A Building Permit is different. ■ Mr. MacGregor asked why was it not issued.....did you keep it in court? F Page 8 of 12 ,9 3 S ■ Mr. Farber answers "NO, I will show you...it's a combination of two.... The first document is the - Bylaw vote in May of 1975 adopting the Wetlands Conservancy District. That was is place in 2000 when this Board heard the case. The soil list was the same as 1974. The next document is another BOA decision of 1983; this governed Lot 6 (across the street) from the lots in question. If you read that, Mr. and Mrs. Owocki were seeking a Variance from the Wetlands Conservancy 'District Bylaw. In other words, they accepted the fact that Lot 6 was in the Wetlands J Conservancy District and they asked this Board for a Variance. The ZBA granted a Variance. An interesting statement in that decision (highlighted). Point is that 1n 1983 this Board recognized not only was Lot 6 in the WCD but the lots across the street were in the WCD. Question _ regarding why the permit was not issued in 2000 after this Boards decision. Permit was not issued. No rights vested before the Bylaw was amended. Provide the Board with case law that says without the Building Permit in hand the property owner takes subject to whatever the town meeting votes regarding the zoning bylaws. There is extensive case law to that effect. Mr. MacGregor asked why the permit was not issued. ■ Mr. Farber continued "somewhat of an explanation as to why it was not issued. The next document is a letter from Mr.Thyng to Reef Realty (Mr. Everett Boyd). It was the zoning issue at the time (2000) and that was the predominate reason the permit was not issued. Of course that matter was brought before this Board. You will notice that Mr.Thyng had other reasons not to issue the permit. He lists them; lack of septic permits, lack of driveway permits, workman's compensation statement not furnished, and he wanted verification of as to the soil bearing - capacity for a 10" wall. There were reasons why the permit was not issued at that time." ■ Mr. MacGregor asked if it had been applied for. ■ Mr. Farber"it had been applied for, I have a copy of the application with me tonight. " The next document is the Board decision in February 2001; the hearing was commenced in December, 2000 and decided in February 2001 for the reasons that I said regarding Mr. Lockwood's testimony. The next document is a document prepared for me by Peter Fletcher. He is the soils scientist that actually contributed greatly to the drawing of the original bylaw for the Town of Brewster. In his report(10-11 pages long) he says between the time the town adopted the bylaws (the Wetland Conservancy in 1974) and 1993 when the Department of Agriculture finished its soil report for the County of Barnstable a lot of the names were changed. In fact, by 1993 eleven of the thirteen soils that were in our bylaw had changed. They were no longer used j by soils scientists to describe the soil, of course the soil was the same they were just using a different term to describe it." ■ Mr. MacGregor asked if they took that information to the court. • "Mr. Faber said we didn't go before the court with that."..... (tape stopped/changed side) ■ Mr. MacGregor asked again if the permit had been applied for. ■ Mr. Farber the permit had been applied for, not issued. Here is the application. It says date issued blank. It was applied for in August 29, 2000. Applied for but not issued. Before I leave Mr. Fletcher's report there are tow table attached; the first pages he goes through what has I happened with the change in nomenclature,Table 1, on the left hand column are, the terms in place in 1974 when originally enacted and still in place in 2000 when this Board voted but by 1993 that nomenclature had changed. Ningret is now referred to as Amostown. Same soil different name. This soil is referred to today on Lot 11 as Amostown, is a prohibited soil, building is not allowed. That is the same soil as in our 1974 Bylaw just a different name. In the following Table,Table 2, Mr. Fletcher goes through and compares the quality of this soil for building purposes. Amostown and Ningret are close cousins. Same limitations for building. Same considerations the town went by in 2001 when they undated the nomenclature. The same soil but different names. The next document is the Appeals Court decision; I encourage each of you to read this decision. Highlighted-the decision of the Board did not exceed its authority.The Superior Court should have considered it only based on the issues before the Board of Appeals. _. The correctness of the action of the Board could only be judged on the law as it existed at the time the Board considered the matter. Then the court goes on and says the record is not sufficient for us to determine, even if we had jurisdiction, whether the permit in question should Page 9 of 12 be deemed to have been issued. In other works, what really the crux of this case is that nobody denies the permit was not issued, was there some reason that it was so close to being issued that for some reason this Board should say it should be deemed to have been issued. That is essentially the issue." ■ Mr. MacGregor asked why Mr. Farber feels it was not issued. ■ Mr. Farber proceeds "for a number of reasons, the application was incomplete (septic permit, driveway permit not in place, building inspector had a legitimate question as to the soil capacity for a 10" foundation wall. Various reasons why he, as Building Inspector......." ■ Mr. MacGregor said but on the issue that he should have issued, that is what the court here said. ■ Mr. Farber" I disagree with you on that " ■ Mr. MacGregor said "isn't that what the court said" ■ Mr. Farber continued "if Peter Fletcher had been at that hearing or his neighbor...... ■ Mr. MacGregor again asked isn't that what the court said. ■ Mr. Farber" all they said was given the information before the Board in 2001, the Boards decision did not exceed its authority. It didn't mean it was a decision that was correct, it's just the Board didn't have all the facts. The end result of the Appeals Court decision, and this is where I differ from Mr. Staley, we hold that the Board did not exceed its authority and on that ground affirmed the judgement the defendants the Owocki. No decision as to the applicability of the new Bylaw. Leaving that for another day. I think each of you have to read that decision, perhaps several times. The next document is that I filed after the Superior Court judge ruled against us. The reason I am providing it to you tonight is because I go through a number of the cases and I give the synopsis of what those cases say about the issues I have been talking about and that is that until a building permit is actually issued the property owner has no vested rights. If there is a zoning bylaw amendment his property his property is subject to the bylaw amendment. I list those cases and they go back 75 years, to 1924. That has been the law in the Commonwealth at least 75 years. I then have supplied 4 cases, again, 3 referred to in last document and one is a case involving the Boston Building Code but very similar to Chapter 40A. Each of those cases draw a very important distinction when the permit is in hand, it is issued, property right vest and a change in the bylaw does not effect that property. If the permit has not issued you have no right to vest-that's the law in the Commonwealth. Mrs. Owocki did not have permit in hand on November 2001 when the Town of Brewster changed the nomenclature in its bylaw and by inserting Amostown as one of the prohibited soils these lots and unbuildable. No different than what this board determined in 1983 in that other decision to the Lot across the street. It may seem unfair that until a permit is issued you are not protected but the rules are the rules." ■ Mr. Farber gave the Board Chairman a copy of the permit not issued. ■ Mr. Freeman asked to be directed to the Superior Court decision that has been referred to. ■ Mr. Farber"I can get you that, I didn't include that" ■ Mr. Freeman asked that that be provided. Mr. Walter McLaughlin, "representing Mrs. Owocki, who is now 83 years old, hopefully she can get a building permit before she dies. She has been trying for 5 years. I want to bring this to you upon the basis of what more could Mrs. Owocki done at various stages? She starts in the year 2000, where there is soil named Amostown on the lot, you have a bylaw that says you can't have a building permit if you have Ningret on your land. The Building Inspector says I am going to deny the permit. We come before you, the Board of Appeals. Mr. Farber and his clients all got notice, they could have come before you at that point and produce any evidence they wanted to do. They chose not to show up. Mrs. Owocki shows up with an expert saying that the soil that is on the property is not a soil prohibited by the bylaw. No other evidence comes in and you as a Board of Appeal say the Building Inspector was wrong. He should have granted the permit. He wrongfully denied the permit based on the determination he made. That was because of evidence provided. Mr. Farber and his client did not permit any different evidence. How do we get the permit within the period of time for an appeal of your decision Mr. Farber and his client appeal the decision that you made to the Superior Page 10 of 12 i Court. At that point there is no way the Building Inspector can get a permit, there is no way Mrs. Owocki can get her permit because the matter is under appeal in the Superior Court. We go to the Superior Court, Mr. Farber has his expert, and I have my expert. The two experts sit down and say we agree there is no Amostown here this is Ningret and while they are close they are two different substances. Mr. Farber and I enter a stipulation there are two different substances we have Amostown which is not prohibited by you bylaw, you have Ningret which is prohibited by your by law i but it isn't Ningret. Both experts say the same thing. Stipulation goes in front of the judge and Mr. Farber's only argument is you were supposed to know what the town meeting is going to do with the bylaw six months after the decision. The court said no; you had to determine you decision based upon what was infront of you at that time. Before the town amended the bylaw. I won in front of the Superior Court. The case then goes, by Mr. Farber's appeal, to the Appeals Court. The Appeals Court affirms your decision, with the information infront of you at that time your decision was s correct. At all of these periods of time Mr. Farber was the one who prevented me from getting a building permit for Mrs. Owocki." "He is the reason I have not been a building permit for five years. The Appeals Court says your decision was correct, the Building Inspector was incorrect, now I am entitled to a Building Permit. Now we go back to the Building Inspector and ask for the permit we applied for prior to the time the Zoning Bylaw was amended. The same permit, the same house, the same foundation, exactly the same. No we are told that we have to HDC application had expired and had to be renewed and Conservation had expired and that had to be renewed. We went back and renewed both HDC and Conservation. Then the building inspector granted a permit, which had bee applied for in 2000 (grandfather in). Mr. Farber says if you don't have permit in hand too bad...." j .............. "Mr. Farber says if a municipal official makes a mistake and doesn't give me a permit then I i have no rights at all, I'm not vested. That can't be the law and I don't know how Mr. Farber thinks I, it's the law. How he thinks that a change two years after we had applied for a building permit and wrongfully denied by the decision of this board that Mrs. Owocki can now be denied that building permit. I think the building inspector was right in granting that permit and I would like you to affirm this decision." Mr. Farber continued "I think Mr. McLaughlin misspoke, when we went before the Superior Court with the Stipulation of Facts notice the date next to Mr. McLaughlin's signature it was August 14, 2002 the bylaw was amended November 2001. When we went before the Superior Court the bylaw had already changed approximately 10 months earlier. The second question is Mr. McLaughlin uses example you have a building inspector who purposely withholds the permit because he is expecting a town meeting vote; there is no law that would ever allow such a thing. First case in my package, 1924 says exactly that. This is a case where a man did not have a building permit-no vested rights because he didn't have the permit. The court ruled it is immaterial that the building inspector held up the application to await the town meeting in which the zoning bylaw was enacted.There are building inspectors that issue permits during the appeals period. Nothing tied Mr.Thyng's hands. I t have a case today, where the Chatham Building Inspector has issued a permit and it is under appeal. My client intends to start building. If Mrs. Owocki or her agent were intent on getting that permit they could have asked for it. They didn't. It may sound wrong to you, but without the permit in hand, no vested rights, subjected to new bylaw. Keep an open mind and read the cases, don't rely on me, read the cases." BOARD DISCUSSION ■ Mr. Harrison said if the client has specific evidence he was held up then he would be interested. No injunction to stop the permit, the building inspector could issue the permit. ■ Mr. Stewart asked what was the date of the appeals court. ANSWER: 2004 Open to Public Input ■ Patricia Ellis (Mrs. Owocki's daughter) gave a brief history of where this case has been to this point. Two Building Inspectors have agreed to give the permit. When issue brought to Superior Court, the Bylaw had changed, he amended and the judge allowed him to amend his complaint. Page 11 of 12 The judge said NO. Then the Appeals Court affirmed this. This is a buildable lot. You had your chance you can not go back to the Board and see if you can change their mind. This has been resolved favorable and should end. Facts prove the permit should be issued. Land less than 200 feet away has been granted a building permit(one of the appellants) and built upon and no one asked him for soils inspections. She is asking the Board to make this final. ■ Mr. Freeman asked if there is any other information to be provided by Mr. McLaughlin then I would suggest it be directed to the office. Can you give us a time frame? ■ "Mr. McLaughlin said within a week." ■ "Mr. Farber going back to the appeals court the decision was that the Board the first time around did not exceed its authority, it could come to the decision based on the evidence before it. I would suggest if you find that the bylaw was passed in 2001 is in place, if you find there was no permit issued before that it will be in access of your authority to grant a building permit in this situation. Because the town meeting has passed a bylaw that says we do not want building on these lots. This Board cannot overrule the town meeting bylaw." ■ Mr. McLaughlin said "I will file a brief dealing with this specific issue within a week." Motion made by Mr. Stewart to Close to Public Input. Second by Mr. Harrison. All voted AYE (5-0-0) DISCUSSION ■ Mr. Freeman asked what is your wish as to how we should proceed. ■ Mr. Harrison noted it was pretty hard to read all this. ■ Mr. Stewart asked if we should ask the Town Attorney ■ Mr. Freeman noted we should ask the Town Counsel if they could offer us some advice. Appropriate way to approach, look at the brief from Mr. McLaughlin. ■ Mr. Nixon noted perhaps we should have an updated statement from Victor. Mr. Harrison made a motion we CONTINUE this case until February 14, 2006. Second by Mr. Nixon. All voted AYE (5-0-0) 05-44 Wayne H. Hyman, 3671 Main Street, Map 11 Lot 25. Applicant seeks an appeal of the Zoning Agents Decision for 2 year extension to rebuild under MGL 40A-13 and Brewster Bylaw 179- 29. Members hearing this case were Messrs. Kearney, Harrison, MacGregor, Freeman and Ms. McInerney. Attorney John McCormick represented Mr. Hyman. Applicant was present. Mr. McCormack was asked to give a brief overview of this application. Cranberry Cove cottage was burned in November 2004 and according to Bylaw must start rebuild within 1 year. Mr. Hyman needs to secure capital to rebuild. He is asking for additional time to obtain finances. DISCUSSION ■ Mr. Harrison noted this should be a overturn Zoning Agent with an extension ■ Mr. MacGregor asked if a building permit has been issued. ANSWER Yes ■ Mr. McCormack mention demolition is part of the process and that has been done. ■ Mr. Harrison asked when it was demolished? ■ Mr. Hyman replied in April/May 2005. ■ Mr. Harrison feels it should be a Variance, no grounds to overrule the Zoning Agent. ■ Mr. McCormack said it is a hardship and a unique structure (pile of wood. Open to Public Input 9 Page 12 of 12 ■ Jillian Douglass noted it should be addressed as a Special Permit '. Mr. McCormack said there is hardship due to appeals and there is a change in pre-existing non conforming. 'i e` Motion made by Ms. McInerney to close to public input. Seconded by Mr. Kearney. All voted AYE (5- 0-0) 4. Motion made by Mr. Harrison to GRANT Special Permit to give applicant one year extension due to hardship with litigation. Second by Mr. MacGregor. All voted AYE 5-0-0. f A Motion to adjourn the meeting made by Mr. Stewart. Second by Mr. Harrison, All voted AYE (9-0-0). Meeting adjourned at 11:15pm Respe u1ly submitted M ilyn ooers/CI r K Old OZ NVP 90. 83ISMNI