HomeMy Public PortalAboutZoning Board of Appeals -- 2006-01-10 MinutesPage 1 of 6
Date approved 2-14-06
Vote 7-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
January 10, 2006
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, and Neva Flaherty. Member excused; Bruce MacGregor.
OLD BUSINESS
^ Regarding Minutes of 12-13-05; Note(page 6) to read in "consultation of Building Inspector with
the Planning Board". Motion made by Mr. Stewart to accept NOTE with revision. Second by Mr.
Nixon. Vote 8-0-0.
^ Motion made by Mr. Stewart to accept the minutes of December 13, 2005 meeting as amended.
Second by Mr. Kearney. All voted AYE (8-0-0).
^ 40B Discussion- additions to documents as presented. To be used by potential applicants.
Motion made by Mr. Stewart to accept Document 1 and 2 as written. Second by Mr. Harrison. All
voted AYE (8-0-0).
NEW BUSINESS
05-28. James Hadley for M/M Joseph Carty, 42 Konohassett Cartway,
Map 41 Lot 11. CONTINUANCE Applicant seeks a Special Permit under MGL 40A and Brewster
Bylaw 179-25(B) and Section 16, Table 2, Note 5. Existing house is within 50' setback from Long
Pond. Applicant wants to demolish existing structure in Flood Zone A area and rebuild to current
plans.
Members hearing this case were Messrs. Jackson, Harrison, Stewart, Nixon and Kearney.
Attorney Duane Landreth represented the Cartys. Mr. David Michniewicz of Coastal Engineering and
Mr. James Hadley (architect) were also present.
Mr. Landreth gave a brief overview of the proposal. The applicant would like to rebuild an existing
house in the flood zone A area. Plans presented with the original application (7-29-05) have been
revised and resubmitted (12-6-05) with Conservation Commission modifications.
Flood Zone A makes it pre-existing nonconforming for use and structure. They would like to
completely rebuild a 2-bedroom house. It will not be within 50' of wetland due to Cons Com
modification, meets front and side setbacks and has a upgrade to septic system (approved by Health
Dept 12-OS). Requesting a Special Permit to allow reconstruction in flood plain district.
Mr. David Michniewicz of Coastal Engineering spoke regarding the height of the foundation in relation
to the flood plain. The design is in compliance with flood hazard zone requirements.
Mr. Landreth indicated that according to Zoning Board Bylaw 179.51 the use is consistent with town
plan. It is harmonious with the neighborhood, attractive and not obtrusive. There is adequate access
for services and trafFc. Parking will be on a gravel driveway and the property will be suitably
landscaped. Conservation Commission has approved this plan and has issued an Order of Conditions.
Page 2 of 6
DISCUSSION
^ Mr. Jackson asked if Long Pond was to rise, would it flood over Rte.124 before it reaches this
house.
^ Mr. Michniewicz stated the RailTrail elevation is 37' (outside the 100 year flood zone). Long Pond
has outlet to Hinkley Pond, which will add relief.
^ Mr. Freeman asked for a clarification on the plans-line indication "bottom of the bank" and "top of
land bank" seem to be the same line.
^ Mr. Michniewicz clarified "bottom of bank" should be "bottom of slope"- edge of resource area
under Brewster Bylaw.
^ Mr. Jackson asked if the existing house has a basement.
^ Mr. Hadley said it has a crawl space and the new house will have a 3' crawl space.
^ Mr. Freeman noted we had a response from the Fire Department regarding the need for smoke
detectors to meet current regulations.
Open to Public Input
^ no one spoke to this matter
Motion made by Mr. Jackson to Close to Public Input. Second by Mr. Harrison. All vote AYE (5-0-0).
Motion made by Mr. Stewart to GRANT Special Permit under MGL 40A and Brewster Bylaw 179-25(B)
and Section 16, Table 2, Note 5 with plans and details presented tonight to rebuild existing house
outside 50' setback from Long Pond. Second by Mr. Harrison. All voted AYE (5-0-0).
05-45 Silsupa Kelley. 2655 Main Street (Foster Square), 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 seating at the establishment from 8 to 14.
Members hearing this case were Messrs. Harrison, Nixon, Kearney and Mss. Flaherty and McInerney.
Applicant, Silsupa Kelley, and Mr. John McMullen were present.
Mr. McMullen, representing Foster Square, indicated Ms. Kelley would like to open a Thai Restaurant in
Foster Square space previously occupied by Deli Gourmet. Since 1992 it has been a fish market and
deli. The parking plan for the complex was presented with key to how many spaces allocated per
unit. Board of Health has approved for 14-seat establishment.
Meets all applicable provisions.
DISCUSSION
^ Mr. Kearney asked if the request was for 14 or 25-seat unit.
^ Mr. Freeman indicated that the first application had been 25 but changed to 14.
Open to Public Input
Attorney John McCormick representing Ms Meredith Baier (abutter) stated this is site specific.
There is an impact on the neighborhood with question of deliveries, driveway behind the
buildings, permanent freezer, compressors and other items. Mr. McCormick presented pictures to
show this area. He also stated trucks tend to stay and leave engines running in an area
designated as a "fire lane". Mr. McCormack noted the Foster Square Plan of 1989 was designated
as "office/retail space" for the development scheme. There has been no change of use permits
for any business. It has always been limited seats with mostly take out. Now there will be high
volume with high vehicle traffic. Evening hours will be extended.
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Past experience-fire lane/delivery has been obliterated because the area is used for storage and
only getting worse.
^ Mr. McMullen response- Mrs. Baier knew Foster Square was a commercial development before she
bought next door. The only item on the back road is a refrigerator. Fire Department requested
the curb be moved. Possibly some trash cans but all in all the road is free. Ms. Kelley is only
asking to increase 6 more seats. Foster Square is not the issue it is the increase in restaurant
seating. The town and the state dictated the entrance and exit plan. Most deliveries are rather
quick.
^ Mr. McCormick noted this is not simply an increase in seating it is the type of hours, volume etc.
^ Mr. McMullen said the hours would be 11:30 am to 10pm, no waitress service. Employees clean
up earlier and leave at 10. After 8pm business slows down. The freezer is a permanent fixture,
shown on the building plans.
^ Mr. Freeman asked if this was the freezer by permit.
Motion made by Mr. Harrison to close to Public Input. Second by Mr. Nixon. All voted AYE (5-0-0).
FURTHER DISCUSSION
^ Mr. Nixon expressed his concern regarding the 10 pm closing. He would be more comfortable with
limited hours- perhaps longer in summer and shorter in the winter.
^ Ms. Flaherty was troubled by the pictures of items in the firelane as well as the noise of fans etc. Is
it screened from the abutter with fence or shrubs?
^ Mr. McMullen added there is no room on that side for a fence.
^ Mr. McCormack stated that in 2000 there was a letter from the Fire Department to widen the road to
the property line. (Letter presented at this time).
^ Mr. McMullen said Fire Chief Jones authorized this freezer.
^ Ms. Flaherty asked why the freezer was outside and not kept within the building.
^ Mr. McMullen said it couldn't be moved inside due to space.
^ Mr. Kearney indicated his concern was traffic impact especially the increase in the summer.
^ Mr. McMullen said the increase to 14 seats equals the 5 spaces allocated for parking.
^ Ms. McInerney said that if the original intention was office/retail is "food" legal. Do we intensify this
chain of events? Fire road situation could be catastrophic.
^ Mr. Harrison has some of the same concerns; odors, fans, appearance. He is nor convinced that a
fence could be put up on the line. This is an ongoing problem. This alley is the issue. Areal pro-
active plan for cleanup is needed.
^ Ms. Flaherty stated she agrees there is a need for a plan and cleanup but is unclear whether we have
the authority. We are dealing with one business not the whole building. How do we do that legally?
^ Mr. Freeman noted we could establish conditions regarding the site.
^ Ms. McInerney stated we couldn't do the town planning or dictate to the Fire Chief. Where is the
abutter in relation to the property and how long has she lived there?
^ Mr. McCormick said the freezer never got a permit. Conservation has established conditions for the
Foster Square property.
^ Ms. Baier mentioned that the pizza exhaust is loud but "bread "smell is nice. They are never open
until 11.
^ Mr. McMullen said Foster Square was built in 1989 and went through all Boards necessary and zoned
VB. Mr. McMullen discussed the removal of the freezer with the applicant, she agreed reluctantly to
remove it if needed.
^ Mr. Harrison asked if it is possible to come up with a plan between tenant and abutter regarding
these issues or continue.
^ Mr. Freeman feels we could approve with conditions.
^ Ms. Flaherty asked if it is possible for Mr. McMullen and Mr. McCormack to work out a plan and return
with specific conditions, suggesting a continuance.
^ Mr. Harrison feels that if they can work out conditions a continuance would be acceptable.
Page 4 of 6
^ Mr. Nixon in favor of denial.
^ Mr. Kearney would entertain a continuance.
^ Mr. Freeman said if we voted now it would be denied, but we would like to see conditions worked out
and bring back a resolution of the issues.
^ Mr. McCormack noted this is not proper use of this space, these must be an office to fill this space.
^ Mr. McMullen said that Mr. McCormick does not want this applicant.
Motion made by Mr. Kearney to DENY the request Silsupa Kelley, 2665 Main Street, and Map 15
Lot 107 seeking a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25 (B) to amend Special
Permit 90-25 to increase the seating at the establishment from 8 to 14. Second by Mr. Nixon. Vote 4-0-
1. Motion Approved.
(Mr. Harrison voted against this motion because he felt this hearing should be continued.)
06-01. 7anice Petersen, 71 Alden Drive, Map 24 Lot 54. The applicant seeks a Dimensional
Variance under MGL 40A-10 and Brewster Bylaw 179-16, Table 2, Note 5 to situate an already existing
shed closer than 50 feet to wetland.
Members hearing this case were Messrs. Freeman, Jackson, Harrison, Stewart and Ms. McInerney.
Ms. Peterson was present as the applicant. She was asked to give a brief overview of the application.
Ms. Peterson presented one set of pictures of the shed and its relationship to the property.
The shed is 3 years old and was built by Pine Harbor Company with a Building Permit (02-439) and
HDC approval. Within the last few months it was determined possibly to be in a wetlands area. Ms.
Peterson has been to the Conservation Commission and on December 20, 2005 was issued a
"Determination of Applicability".
DISCUSSION
^ Mr. Freeman noted the conditions and the drawing submitted does not adequately place the shed
in the correct spot. On the TADCO Environmental Consultant drawings (revised 8-6-98) it should
be placed 25.5' from the right property line, 31.5' from the house and 44' from the right corner
(NE) of the lot.
^ Mr. Stewart asked if this permit was for the shed only.
^ Mr. Freeman said "yes".
^ Mr. Jackson noted if the shed were to be moved a full 50' it would be in the house.
^ Mr. Stewart asked where is the edge of the vegetative wetland.
• Mr. Freeman said this has not been defined, even by the Conservation Commission.
^ Mr. Stewart noted there is no standing water.
Open to Public Input
^ Mr. Steve Harrigan (Brewster Resident) noted the shed sits on hill with a steep drop off to the
back. Placement of the shed is about the only spot on the property.
Motion made by Mr. Stewart to Close to Public Input. Second by Mr. Harrison. All voted AYE (5-0-0).
DISCUSSION
^ Mr. Stewart said the town approved of this prior to the discovery of the wetland. Cons Com has
no issue.
^ Mr. Freeman said no one knows the wetlands boundaries.
Motion made by Mr. Stewart to GRANT this Variance under MGL 40A-10 and Brewster Bylaw 179-16,
Table 2, Note 5 to situate an already existing shed closer than 50 feet to wetland based on the fact
Page 5 of 6
that it was permitted prior to Conservation issue coming to light and the effect is deminimus. Second
by Mr. Harrison. All voted AYE (5-0-0).
06-02. A+E Architects (Steve + Eunice Harrigan), 27 Thousand Oaks Road, Map 42 Lot
21. Applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-16,Table 2, Note 14
for an in-law apartment attached to existing house.
Members hearing this case were Messrs. Freeman, Harrison, Stewart, Nixon and Ms. Flaherty.
Mr. Robert Evans of A + E Architects represented the applicant. Mr. Harrigan was present.
Mr. Evans was asked to give an overview of the plans.
Mr. Evans presented the Board and the file with a replacement copy of plans. Plans A-1.0 and A-1.1
(2 versions) dated 1-9-06 were shown and discussed as alternatives to original plans. This is a 24 x
28 addition. It is a garage/ workshop with a first floor 588 square feet accessory apartment and 2nd
floor unfinished storage.
Mr. Harrigan's mother-in-law is a 59 year resident of the cape who should no longer live alone.
DISCUSSION
^ Mr. Freeman asked if the unit has access to the outside
^ Mr. Evans indicated a front door in the lower right of plan and slider to the deck.
^ Mr. Freeman noted that the existing deck is too close to rear setback. This must be worked out
with Victor.
^ Mr. Nixon asked about the 2"d floor storage area-as an unfinished area could it be livable. Is the
foundation attached to the house?
^ Ms. Flaherty asked how tall is the attic area?
^ Mr. Evans noted the foundation is attached with the work area and the storage area eaves are 12
pitch with 6.5 ' at the ridge.
^ Mr. Freeman asked is the breezeway was covered. (Plan A-1.1 with "new breezeway")
^ Mr. Evans responded "if required".
^ Mr. Stewart noted an accessory apartment is usually physically attached to the house. Basement
connection not acceptable.
• Mr. Freeman said the enclosed breezeway area should be the attachment to the house.
Open to Public Input
^ Diane Racatte (rear abutter) plans have changed completely since they were originally shown to
her. She presented pictures from her property. Her main concern is the septic system. Is it
above or below ground level? She is also concerned with privacy issue. She asked what happens
when this unit is no longer used.
^ Mr. Freeman told her of the in-law apartment regulations.
^ Mr. Stewart stated it looked like the septic system would be below ground level.
^ Mr. Freeman told Ms. Racatte that issues with septic system should be brought to the Health
Department.
^ Bill March (builder) representing the mother-in-law. The area proposed is "conditioned space" or
connected to the main home. They would be agreeable to a roof over the breezeway if desired.
Motion made by Mr. Harrison to Close of Public Input. Second by Mr. Nixon. All voted AYE (5-0-0).
THOUGHTS OF THE BOARD
^ Mr. Stewart asked if Mr. March would explain "conditioned space"
Page 6 of 6
^ Mr. March said it is heated
^ Mr. Evans said he talked with Victor Staley (Building Inspector) and the workspace is
"conditioned".
^ Ms. Flaherty asked if the breezeway had walls.
^ Mr. March responded "if needed for approval".
^ Mr. Harrison said he would prefer the breezeway have walls thus attached to the main house.
^ Mr. Stewart agrees with Mr. Harrison and would like to add a condition that the space above the
apartment is not finished.
^ Ms. Flaherty approves with the breezeway totally enclosed.
^ Mr. Freeman agrees with Ms. Flaherty and Mr. Harrison as the intent of the bylaw is to have home
attached to the apartment through totally enclosed space.
Motion made by Mr. Stewart to GRANT a Special Permit under MGL 40A-9 and Brewster Bylaw 179-
16,Table 2, Note 14 for in-law apartment attached to existing house as shown on revised plans (A-1-1
"with breezeway") having total enclosure and with the condition that 2"d floor remain unfinished.
Second by Mr. Harrison. All voted AYE (5-0-0).
10:15pm Motion made by Mr. Stewart to adjourn. Second by Ms. Flaherty. All voted AYE (8-0-0).
Res ully submitted,
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