HomeMy Public PortalAboutZoning Board of Appeals -- 2006-03-14 MinutesPage 1 of 7
Date approved 4-11-06
Vote 7-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
March 14, 2006
Meeting Minutes
Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were; Brian
Harrison, Paul Kearney, Philip Jackson, Harvey Freeman, and Neva Flaherty. Members excused were;
John Nixon, Suzanne McInerney, Arthur Stewart and Bruce MacGregor.
OLD BUSINESS
^ Motion made by Mr. Kearney to accept the Minutes of February 14, 2006. Second by Mr. Harrison.
All voted 5-0-0.
NEW BUSINESS
06-05 Jeff Thibodeau, 1095 Long Pond Road, Map 33 Lot 44-5. The applicant seeks a Variance
under MGL 40A and Brewster Bylaw 179-37 (Home Occupation) and/or overturn or amend the Zoning
Agents Decision under MGL 40A sections 8 + 15 to allow home occupation in an accessory building.
WITHDRAWN without Prejudice.
Motion made by Mr. Harrison to Withdraw without prejudice 06-05. Second by Ms. Flaherty. All voted 5-
0-0.
06-03 Don + Martha Baker, off Gull's Way, Map 34 Lot 46-1. The applicant seeks an Appeal of
the Zoning Agent under MGL 40A, sections 8 and 15 ruling that the lot in question lacks grandfathered
zoning dimensions and/or frontage to qualify as a buildable lot.
• Attorney William O'Brien represented the Baker's.
^ Mr. O'Brien has asked for a further CONTINUANCE due to the fact that the Zoning Agent
has not had a chance to review new materials submitted since his LOA.
^ Zoning Agent needs time for review
^ Requesting CONTINUANCE until April li, 2006 meeting.
Motion made by Mr. Jackson to Continue until April 11, 2006 case # 06-03. Second by Mr. Harrison.
All voted 5-0-0.
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. Jackson, Harrison, Kearney, Freeman and Ms. Flaherty.
Mr. Michael Ford (Attorney) spoke on behalf of Town Counsel. Mr. Ford was assigned Special Town
Counsel to replace Sarah Turano-Flores. Mr. Ford gave brief background information.
^ Mr. Ford reviewed the entire file back to September 2000.
^ Reviewed the initial DENIAL letter of September 2000.
^ Board overturned Mr. Thyng's decision on 2-13-01
^ Appeal 3-01 (Superior Court)
^ Prior to judgement-Brewster amended Zoning Bylaw
^ Superior Court decision (Fall 2002) entered into stipulation, ZBA was correct regarding soil issue,
and new Bylaw did not apply.
ZBA minutes 3-14-06
Page2of7
^ Abutters then went to Appeals Court
^ Appeals Court found Board not in error, judgement correct.
^ Then went to Supreme Judicial Court
^ Back to the Town of Brewster-new zoning amendment now.
• Not entitled to building permit-no site plan review.
DISCUSSION
Mr. Freeman asked if Mr. Ford was aware of the letter from Victor Staley dated 3-14-06.
Mr. Ford was not and was given a copy.
Mr. Ford expressed the following thoughts;
1. This is where the Board needs to get factual findings regarding Mr. Staley's letter.
2. Response on #2-right after ZBA-resolved
3. #3- 2006 date is in the future
4. #5 -foundation plans noted for May 1990 were permitted in 2000.
BOARD COMMENTS
^ Mr. Jackson noted # 2-4 essentially in technical categories, # 1 appears to be the main issue.
^ Mr. Ford said Mr. Thyng stated that
^ Mr. Jackson said that is true right now, the soil type does not allow building.
^ Ms. Ford stated when the application was made this lot did not have soils in place in soil
conservancy district. In 2001, yes this was buildable. Now, after 2001 amendment, application has
changed. If someone applied today with this history, that soil type now places it in wetland
conservancy.
^ Ms. Flaherty asked could the owner have gone in and gotten a building permit.
• Mr. Ford said they would need a site plan review.
^ Mr. Freeman (noting check off boxes on permit) asked if this suggests supporting pieces not
present. He would like to hear from the Zoning Agent/Building Commissioner as to the correct focus
on how complete was the application.
^ Mr. Kearney sated those issues need to be addressed. Dates cause concern.
^ Mr. Harrison asked about the process for DPW driveway issue.
^ Mr. Freeman spoke to Mr. Farber; the Board does not have sufficient information.
^ Mr. Farber said the permit was never paid for until just recently. David Thyng (Zoning Agent of
record) is still around. It is important to know how important these permits are to him.
^ Mr. McLaughlin said they are working within the parameters. How ministerial is the driveway. He
feels they need a continuance.
^ Ms. Flaherty noted she feels we need to hear from Mr. Thyng.
Open to Public Input
No one spoke to issue
Motion by Mr. Harrison to Close to Public Input. Second by Mr. Jackson. All voted AYE (5-0-0).
Agreement of Mr. Farber and Mr. McLaughlin for Continuance.
Motion made by Mr. Harrison to Continue 05-42 until April 11, 2006, contingent upon Mr. David
Thyng's availability. Second by Ms. Flaherty. All voted AYE (5-0-0).
06-04 Captain Del Associates, Inc., Cottage #3, Linger Longer Cottages, 261 Linnell Landing
Road, Map 9 Lot 1. The applicant seeks a Special Permit under MGL 40A section 6 and Brewster
ZBA minutes 3-14-06
Page 3 of 7
Bylaw 179-25 A and B, article VIII and 179-51, article X to alter, extend and change apre-existing non-
conforming single-story cottage with atwo-story cottage.
Members hearing this case were Messrs. Jackson, Harrison, Kearney, Freeman and Ms. Flaherty.
Attorney William O'Brien represented Capt. Del Associates, Inc. Mr. Edward Barber, representing Capt.
Del Cottages and Tim Washburn (architect) were also present.
Mr. O'Brien was asked to give a brief overview of the project.
Capt. Dell Cottages are off 261 Linnell Landing Road. It consists of a main building and 7 cottages on
2.47 acres of land. Five cottages have been previously renovated. This hearing is for Cottage #3. This
is to raze and replace with a slight relocation from the lot line. The shift will place #3 just over 20' from
the lot line. Increase in size from 1916 square feet to just over 2000. This is not a large increase in
intensity. The design is in keeping with other and the area.
DISCUSSION FROM THE BOARD
^ Mr. Jackson noted this is a little larger footprint. Cottage #3 is the largest cottage of the 7.
^ Mr. Barber said the number of bedrooms would remain constant. The added footage is to make this
unit handicapped accessible.
^ Mr. Jackson asked if the percentage of increase was about the same as the others.
^ Mr. Barber said #1-4 are identical, 5th has the same foundation, and #3 is a modest increase.
^ Mr. Jackson asked if the setbacks changed in NW side.
^ Mr. O'Brien said the current is 17', proposed 20'. Not getting any closer. Overall lot coverage (inn
and cottages) is 9.7%.
^ Ms. Flaherty asked if all other 6 have been done.
^ Mr. Barber said Cottage #1 has not been done as they have difficulty with Conservation committee.
^ Mr. O'Brien said this unit has been approved by Conservation.
^ Mr. Kearney asked with this increase in size would it be year round. Is heat included.
^ Mr. Barber said they do not operate as a year round business. YES there will be heat.
Open to Public Input
^ Roberta LaFleur (Resident of Brewster) wanted to commend the people who own the property. As a
beach patron at Linnell Landing she feels the property abutting the beach is no problem.
Motion to Close to Public Input made by Mr. Harrison. Second by Ms. Flaherty. All voted AYE (5-0-0).
DISCUSSION
^ Mr. Kearney has no problem with this.
^ Mr. Harrison has no issues, commend them for handicapped accessibility.
^ Mr. Jackson has no issues; precedent has been set in the past.
^ Ms. Flaherty no objection.
Motion made by Mr. Jackson to GRANT a Special Permit under MGL 40A section 6 and Brewster Bylaw
179-25 A and B, article VIII and 179-51, article X to alter, extend and change apre-existing non-
conforming single-story cottage with atwo-story cottage as per documents submitted (drawing SP1 by
Brown Lindquist Fenuccio and Raber Architects). Second by Ms. Flaherty. All vote AYE (5-0-0).
06-06 Meridith Baier, 2663 Main Street, Map 14 Lot 52. The applicant seeks an Appeal of the
Zoning Agents Decision under MGL 40A, sections 8 and 15 and Brewster Bylaw 179-11 regarding change
of use at Foster Square.
Members hearing this case were Messrs. Jackson, Harrison, Kearney, Freeman and Ms. Flaherty
ZBA minutes 3-14-06
Page 4 of 7
Attorney John McCormack represented the applicant. Ms. Meridith Baier was present at the hearing.
Mr. McCormack was asked to give a brief overview of the application.
Ms. Baier is a residential neighbor to Foster Square. We have heard in the past detailed testimony
concerning use and proposed us. The ZBA voted to deny an increase in seating from 8 to 14.
Primary concerns loading area/fire lane. Other concerns are increase noise, odors, type of menu items,
service, hours, lighting and vehicular traffic.
Foster Square in July, 1999- proposed a building with a 30-seat restaurant capacity and the second
building as "office space".
Mr. McCormack listed the following as concerns of the retail space. His client feels that this is a step in
the wrong direction, not what was envisioned as Village District. This should be good responsible use of
this space. Change of use as section 28 describes, non-conforming use, provided a substantially
different use. Difference in patronage, service, site, noise and employment. Section 6.6 says change of
use to any allowed use can only be done by Special Permit.
DISCUSSION BY BOARD
^ Mr. Freeman said we are getting off the point. Speak directly to what the permit 90-25, 99-05
(Calairi-increase seating/did not appear) permitted and 99-14-Denied increase seating (kept at 8).
No question as to the issue of increased seating-that was DENIED.
^ Mr. McCormack said yes, seating increase came before the Board but change of use must come
before the board. From Bayside Gourmet to takeout Thai Restaurant is different. Food to food only
is not issues listed in Brewster Bylaw.
^ Mr. Harrison said what was in front of up last time was valid. Where is the Section 28 citing change
of use. How do we determine change of use here. Can you cite case law.
^ Mr. McCormack said in addition to Section 6.6 because it is Route 6A it requires a Special Permit as
the Corridor Overlay district.
^ Mr. Harrison asked why do you think this is in Corridor Overlay not General Bylaw (40A, sect.8+14).
Open to Public Input
^ David Oliver (Brewster Resident) stated Thai food is far from fast food. Patronage is the same.
Cape Cod has many aromas and noise on 6A is already at high level with campers, motorcycles etc.
Motives are frivolous.
^ Mr. McCormack said Meridith lives next door and to her the concerns are not frivolous.
• Ms. Baier said when this was a fish market (fish + chips) it had some take out with 8 seats. Also
clambakes.
^ Mr. Freeman asked what kind of operation is planned at the Thai Restaurant.
^ Mr. Oliver said the seating has been eliminated to 0. No required handicapped bathroom, so it must
be takeout. Previously it was takeout and limited seating.
^ Mr. McCormack noted this is a change of use not how food is prepared, talking of increase in
volume. This has to come here or Planning Board because of a change.
^ Ms. Baier spoke regarding "frivolous", when one has to have an attorney, it is not frivolous. It has
to do with the value of property. I want to make sure my properly is protected.
Motion to Close to Public Input made by Mr. Jackson. Second by Ms. Kearney. All voted AYE (5-0-0).
Board Comments
^ Mr. Harrison- cannot approve as a change of use, it must be sent through the process. It has never
been treated as non-conforming use.
^ Mr. Jackson-difficult to differentiate between acceptable and non-acceptable type of restaurant.
^ Mr. Harrison-non-conforming use is more lateral-permits not with the land or person but with the
business.
ZBA minutes 3-14-06
Page 5 of 7
^ Ms. Flaherty- in the past Inn's come before us for Special Permit as change of ownership why
wouldn't it be the same for restaurant. Does it run with the land or the person. By the definition of
restaurant, if you take out tables then it is non-conforming-maybe.
^ Mr. Kearney feels the same as Ms. Flaherty. Come back as a Special Permit, run with owner (even
though it is operated the same way). What are the hours of operation prior.
^ Ms. Baier said off-season close at 7pm, summer 9pm.
^ Mr. Freeman feels we should uphold Zoning Agents decision-seating for 8.
^ Mr. Harrison said if the proposed facility does not have table service, it does not meet definition of
restaurant. Thus it is anon-conforming use and constitutes a change of use.
^ Mr. McCormack asked if they applied for 0 seats, the building permit is 0 seats.
^ Mr. Jackson asked if we uphold Victor Staley's decision or not.
^ Mr. Freeman said this resides more with the Planning Board and Corridor Overlay. The Zoning
Agent gave an opinion we can uphold even though there are changes now being addressed.
^ Mr. Jackson said given the fact the Zoning Agent issued a permit of "0" seating he is opposed.
^ Mr. McCormack added they feel they can amend the appeal based on "0" seating. This further
impacts appeal.
^ Mr. Freeman said the Zoning Agent acted appropriately with the information before him at the time.
Motion made by Mr. Harrison to allow Mr. McCormack to CONTINUE case 06-06 until May 9, 2006 to
provide more information and amend the application. Second by Mr. Jackson. Vote 4-1-0.
06-07 Anthony 7. Motto III+ Phyllis J. Motto, 72 Deer Path Circle, Map 31 Lot 82. The
applicant seeks an Appeal of the Zoning Agents Decision under MGL 40A, sections 8 and 15 and
Brewster Bylaw 179-11 in regard to an existing Home Occupation use.
Members hearing this case were Messrs. Jackson, Harrison, Kearney, Freeman and Ms. Flaherty.
Mr. and Mrs. Motto were present. Mrs. Motto gave brief overview of the application.
They do don't feel they are operating a landscape business. There is no sign, no coming and going on
the property. Equipment is kept out of site. Two trailers to move mowers etc.
DISCUSSION
^ Mr. Freeman said under the definition; Home Occupation is entirely in the dwelling unit.
^ Mr. Harrison asked if any advertising on trailers.
^ Mr. Motto said just on the truck.
^ Mr. Freeman asked if there is any other place to store equipment.
^ Mrs. Motto said they have not looked into it yet.
^ Mr. Freeman inquired if they knew who made the complaint.
^ Mrs. Motto said YES; they had a copy of the letter.
^ Mr. Kearney stated in the Zoning Agent letter regarding the contractor removing his license-why.
^ Mrs. Motto explained there was a problem with refusing to pay until work was completed.
^ Mr. Jackson asked if the trailers could be tucked in the back.
^ Mr. Motto said going too far back is too close to the wetlands.
^ Mr. Jackson asked if it could be screened with trees.
Open to Public Input
^ Mr. Valcourt (Brewster Resident) this is the 3~d business that the Motto's have run from the house.
They have 4 driveways. The previous contractor owned the trailer mentioned in the letter. This is a
residential neighborhood with a business being run out of this home. In the cost of doing business
storage is needed. If this is permitted what will be next.
• Mr. Motto responded that only 1 driveway is used for landscape trailer and truck. He has 1 truck and
2 trailers.
^ Ms. Valcourt stated they did not want to see a change in the neighborhood.
ZBA minutes 3-14-06
Page 6 of 7
Motion to Close to Public Input made by Mr. Kearney. Second by Ms. Flaherty. All voted AYE (5-0-0).
DISCUSSION
^ Mr. Harrison-not a home occupation, storing not working, seems to have little impact on the
neighborhood.
^ Mr. Kearney-following concerns; material storage, shed within 100-foot buffer zone (no chemicals)
and protect the neighborhood.
^ Mr. Jackson- we could require a shrub screen.
^ Ms. Flaherty agrees with the screening
Motion made by Mr. Jackson to GRANT overturn the Zoning Agents Decision of applicant 06-07 under
MGL 40A, sections 8 and 15 and Brewster Bylaw 179-11 in regard to an existing Home Occupation use
with the following conditions; limit to 2 trailers and one truck, augment existing screening, and no
chemical storage and stockpiling materials on site. Second by Mr. Kearney. All voted AYE (5-0-0).
06-08 Roberta LaFleur. 17 and 25 Concordia Cartway, Map 38 Lots 7 + 8. The applicant seeks
a Special Permit and or a Variance under MGL 40A-9 and Brewster Bylaw 179-51 and 52 and 179-25B to
remove apre-existing nonconforming structure (mobile home). To construct a single family home on
the 2 as-yet-separate parcels, one of which currently is the site of the mobile home.
Members hearing this case were Messrs. Jackson, Harrison, Kearney, Freeman and Ms. Flaherty.
Attorney Duane Landreth represented the applicant. Ms. LaFleur was present at the hearing. Mr.
Jacques LaPointe, contractor, was also present.
Mr. Landreth gave an overview of the project.
Ms. LaFleur would like to modify apre-existing non-conforming structure to replace with a single story
modular home. The mobile home that was on the lot was removed in December 2005. The
infrastructure of the lot has power, septic and 2 wells. There is some history of these lots; 6-7-8-9-and
21-1 was created in 1959. The deed includes description located on Concordia Cartway, a 40' right of
way with access to Pine Pond. Lot 8 was unrecorded in 1960 and approved with a home trailer.
These lots are stacked from Slough Road thus lack frontage. In 1966 there was a residence on lot 6.
The septic for lot 8 is on lot 7. Lots 7+8 total 28,324 square feet. According to Moran Engineering Site
Plan of 1999-driveaway is on the property next door with a curb cut on Slough Road.
Ms. LaFleur would like to combine lots 7+8 and build a single family 1400 square foot residence. It
would have a walkout basement and single car garage. It would meet current setbacks. According to
the Zoning Agent on October 12, 2005 pre-existing is lawful for residential use. It complies with
applicable provision of Bylaw.
BOARD DISCUSSION
^ Ms. Flaherty sated that because the trailer was there before zoning bylaws existed is frontage an
issue.
^ Mr. Landreth said the lot was created in 1959.
^ Mr. Kearney asked if Concordia Cartway is a road.
^ Mr. Landreth said N0, only on unrecorded plan. Deed established as a right of way, could condition
a right of way for access.
^ Mr. Kearney asked if there is a plan to separate Lot 6
^ Mr. Landreth said when they go to Planning Board to establish ANR to combine 7+8.
^ Mr. Freeman stated this Board couldn't create frontage.
Open to Public Input
ZBA minutes 3-14-06
Page7of7
^ Diane Murphy (abutter) has no problem with a home there. Concern with the size of lots, by
combing 7+8 leaves #6 very tiny. She doesn't see the wisdom of that. Affordable housing has been
well established on Slough Road.
^ Mr. Freeman asked if the applicant has previously gone to the Planning Board.
^ Ms. LaFleur said the process was started with the Building Inspector. He told her of the regulations.
Plans on building on last 2 and sell lot 6. He referred it to ZBA for frontage approval. The Fire
Department named Concordia Cartway. Financially she would like to sell the front lot, as it is big
enough to be buildable.
^ Mr. Harrison asked what prevents Lot 6 to merge with Lots 7+8.
^ Mr. Landreth said there was a separate structure on Lot 6, which is gone now.
^ Gary Haigh (abutter) asked if the Board approves the plan and sell Lot 6 could they build a home.
^ Mr. Harrison stated there are a lot of variables especially how long Lot 6 stays vacant.
^ Mr. Haigh asked if the land to the right of the lot creates a land locked lot with an easement through
Lot 6. No frontage on the roadway.
^ Mr. Freemen said the Planning Board deals with granting frontage.
^ Mr. Jackson said Lots 7 and 8 have no recognized frontage.
^ Mr. Freeman asked if the applicant would consider combining the 3 lots.
^ Mr. Landreth said the Planning Board would have to create a perimeter plan to combine 3 lots.
^ Mr. Haigh said it would be nice to see a house there but thinks all 3 lots should be combined.
Motion to Close to Public Input made by Mr. Kearney. Second by Ms. Flaherty. All voted AYE (5-0-0).
FURTHER DISCUSSION
^ Mr. Landreth stated they reluctantly agree to combine all 3 lots to obtain this permit- that option is
on the table.
^ Mr. Jackson noted he would be willing to approve with proviso
^ Mr. Freeman said he could approve the Special Permit and withdraw the Variance.
^ Mrs. Murphy asked what would happen to the owners of lot 9 and 21-1.
^ Mr. Kearney said they have no access.
Motion made by Mr. Harrison to GRANT Special Permit for 06-08 under MGL 40A-9 and Brewster Bylaw
179-51 and 52 and 179-256 to remove apre-existing nonconforming structure (mobile home). To
construct a single family home on the 2 as-yet-separate parcels, one of which currently is the site of the
mobile home. This is granted based on plans submitted with proviso to combine 3 lots (6-7-8) reference
plan of 05-155. Second by Mr. Kearney. All voted AYE (5-0-0).
Motion made by Mr. Kearney to adjourn meeting. Second by Ms. Flaherty. All voted AYE (5-0-0).
Meeting adjourned at 11:OOPM
Respectfully,
Marilyn Mooers/Clerk
cc Town Clerk
Selectmen
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ZBA minutes 3-14-06