HomeMy Public PortalAboutZoning Board of Appeals -- 2006-04-11 Minutes
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Date approved 5-9-06
Vote 8-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
April 11, 2006
Meeting Minutes
Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were; Brian
Harrison, Paul Kearney, Harvey Freeman, John Nixon, Suzanne McInerney, Arthur Stewart, and
Bruce MacGregor.
OLD BUSINESS
^ Motion made by Mr. Kearney to accept the Minutes of March 14, 2006. Second by Mr. Harrison.
All voted 7-0-0.
^ Letter received by all Board members from M/M David Villandry regarding a 2003 case. This is
informational as well as an enforcement issue.
^ Ms. McInerney wanted to make note with sadness on the passing of Julie Hayes (Historic District
and Building Department). The Zoning Board of Appeals condolences to her family.
NEW BUSINESS
05-38 John L. Hooper, 10 Nancy May Path, Map 7 Lot li-i. 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 apre-existing, non-conforming single-story dwelling with atwo-story dwelling.
05-39 ]ames 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 apre-existing, non-conforming single-story dwelling with atwo-story dwelling.
Attorney William O'Brien represented the applicants. Mr. John Hooper was present.
^ Mr. Freeman asked Mr. O'Brien if he would accept Mr. Stewart as a replacement on the Board
for Mr. Jackson who will be away due to a family emergency.
^ After consulting with his client, Mr. O'Brien said he would rather NOT have a replacement. He
would request a CONTINUANCE until Mr. Jackson's return.
^ Attorney Duane Landreth representing Julie DeMarco voice his opinion that he prefers the case
be heard.
^ Mr. Freeman noted Mr. Landreth's objection but the Board will defer to the Attorney bringing
forth the case.
Motion made by Mr. Harrison to CONTINUE 05-38 and OS-39 UNTIL June 13, 2006 meeting. Second
by Mr. MacGregor. All voted AYE (4-0-0).
06-03 Don + Martha Baker, off Gull's Way, Map 34 Lot 46-i. CONTINUANCE 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.
Members hearing this case were Messrs. Harrison, Freeman, MacGregor, Nixon and Stewart.
ZBA Minutes
04-11-06
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Attorney William O'Brien represented the applicants. Mr. Baker was present.
^ Mr. O'Brien was asked to give a brief history of this case.
^ Mr. O'Brien said this piece of property has significant history. In June 2005 Mr. O'Brien wrote tc
Mr. Staley to establish pre-existing zoning.
^ Mr. Staley felt he had inadequate information to make this decision thus on November 21, 2005
it was denied.
^ Town Counsel took a fresh look at this and on January 12, 2006 letter indicated new research
helped him with frontage and access and ownership of the rail trail.
• February 2, 2006 more research regarding valuation of railroad- records do exist on microfiche.
^ Letter on February 8, 2006 from Paul Benatti agreed it is a buildable lot. Lot 46-1 severed from
46. That lot has independently existed.
^ Plan of 1957 laid out 2 lots 46 and 46-1. Predated zoning. Grandfathered protection continued.
QUESTIONS
^ Mr. MacGregor asked what 195073 refer to; section 5 in Feb. 2 letter.
^ Mr. O'Brien said it is a railroad station marker for frame of reference.
^ Mr. Stewart asked if the Zoning Agent had seen the letter of Feb Stn
^ Mr. O'Brien said Mr. Staley had been on leave, upon return he was aware of the letter but felt
the ZBA should make the decision.
Open to Public Input
^ Mr. Edward Lewis (abutter) noted that this property sits on a road about 10-12 feet wide (dirt)
next to the rail trial and bike path. Only access is across the bike path. If this goes forward
there are a lot of cart paths that would be affected. He thinks this is a bad idea-the area the
way it is built. Fire Department/DPW maintain that access is difficult. He has a problem
understanding how we have to live with regulations made 100 years ago. This is not on Gull's
Way it is a cartpath.
^ Mr. O'Brien noted he appreciates Mr. Lewis's concerns, however, the law controls this issue. As
Town Counsel noted specific, accepted plans prior to 1978 are in effect. Crossing the bike path
has always happened; markings have always been there.
• Mr. MacGregor asked Mr. O'Brien to explain how this relates to the dirt road bylaw. The town
passed a law for 5 acres or more.
^ Mr. O'Brien said this pre-existed zoning. Obviously this is not 5 acres. Research qualifies this
under other means-pre-existing zoning.
^ Mr. Freeman asked if we have had a response from Fire and Police.
^ Ms. Mooers (clerk) said nothing had been returned.
^ Mr. O'Brien said we are talking legal status. Declaration that this is a buildable lot not that there
is suitable access for fire and utilities.
^ Mr. Freeman noted this Board has a responsibility to understand the situation of safety.
^ Mr. MacGregor noted Section 179.26D-road section- access road is not a road. Doesn't mean a
buildable lot.
^ Mr. O'Brien said 26A is more appropriate. It is not lacking street frontage. Town Counsel has
agreed with frontage. "Private crossing" "old road" is a legal question. There is an access
question but "old road" could provide access. Access could be achieved from Long Pond Road.
The lot has rights over the rail trail.
^ Mr. Freeman said Old Road is shown on a subdivision plan of 1957 (ANR plan).
^ Mr. MacGregor said the frontage must be on a street by definition 24' wide.
^ Mr. O'Brien said this pre-existed bylaw and definition; Land Court Case (Clark v Wagner) 1994 -
Tab 12. Approval of buildable lot not approval of a permit. Road from which frontage is derived
not necessarily under today's standards. Essentially grandfathered. This can be driven through.
• Mr. Baker noted access on Gulls Way has been upgraded by construction of the bike path. Road
parallels the bike path.
^ Mr. MacGregor asked if they would cross the bike path for access.
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^ Mr. Baker said Yes, legal access.
^ Mr. O'Brien said it would be marked for crossing as it has in the past; markings and boulders.
^ Mr. Lewis stated that what has been done for construction is in the parking lot not the extension
of Gull's Way (left of the bike trail) not the road.
^ Mr. Baker said he spoke to the foreman of the construction-they had a grader on the road twice.
He informed him the apron of the rail trail would be replaced; ballards and boulders will be
replaced to indicate crossing.
Motion made by Mr. Nixon to Close to Public Input. Second by Mr. Harrison. Vote 5-0-0.
Board Discussion
^ Mr. Nixon stated we are here to overturn the Zoning Agents decision. Attorney and Town
Counsel indicate it is a buildable lot. We should overturn ZA decision.
^ Mr. Stewart noted a dilemma; with Town Counsel decision we are obligated to overturn the
Zoning Agent, but what will come next.
^ Mr. MacGregor agrees with Mr. Nixon that we should overturn decision.
^ Mr. Stewart said the town has other avenues for issuing a building permit.
^ Mr. Harrison said based on information provided and Town Counsel decision we do not have a
choice.
^ Mr. Freeman takes the same position as Mr. Nixon.
Motion made by Mr. Nixon to OVERTURN ZONING AGENT decision due to ruling established by
Town Counsel that lot does qualify as a buildable lot with zoning frontage under MGL 40A, sections
8 and 15. Second by Mr. Stewart. Vote; 5-0-0.
06-09 Thomas and Natalie Gennett, 1425 Main Street, Map 23 Lot 15. The applicant seeks
a Special Permit under MGL 40A-6 and Brewster Bylaw 179-51 to replace storm damaged
garage/shed with new garage. Currently garage/shed is 4' from lot line; new garage will be 20'.
Members hearing this case were Messrs. Harrison, MacGregor, Nixon, Stewart and Ms. McInerney.
Mr. Gennett was present to discuss his application.
He was asked to give brief overview.
During the December 2005 windstorm a cherry tree fell into garage structure knocking it off
footings. He would like to rebuild the non-conforming structure with a slight increase in size. It was
12 x 20 now 16 x 18. Mr. Gennett presented a new plan showing the proposed new shed 35' from
the rear lot line and approximately 23' from the side lot line.
Board Discussion
^ Mr. Freeman asked what are the exact dimensions.
^ Mr. Gennett said new 16 x 18.
^ Mr. Stewart said setbacks of 35' back and 25' side seems to be possible
^ Mr. Freeman asked Mr. Gennett if he was agreeable to this.
^ Mr. Gennett said his wife and builder (Mark Wheeler) had sited the building.
^ Mr. Freeman asked why set at an angle as shown.
^ Mr. Gennett stated to match the new dwelling.
^ Mr. Nixon said it is set at 23' on the West Side but 25' does not seem to be an issue.
^ Mr. Stewart asked if there are 2 dwellings on the same property.
^ Mr. Gennett said they have HDC approval to demolish old building,
• Mr. Stewart said if the building is moved to 25' West Side and 35' off rear it brings it into
compliance.
^ Mr. Gennett said he would make sure it is done.
^ Mr. Freeman said if this is brought into compliance it is no longer an issue.
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Open to Public Input
^ No one spoke to the issue
Motion by Mr. Harrison to Close to Public Input. Second by Mr. Nixon. Vote: 5-0-0.
Motion made by Mr. Stewart to GRANT a Special Permit for 06-09, under MGL 40A-6 and Brewster
Bylaw 179-51 to replace storm damaged garage/shed with new garage/barn. Stipulations that
setbacks no less that 35' rear and 25' west lot line. Revised certified plot plan with location of septic
systems and revised date is presented for the record within 20 days. Second by Mr. Harrison.
Vote: 5-0-0.
04-45 Paul T. Lucier, 40 Skaket Way, Map 10 Lot 22, 21-1, 21-2. The applicant is
requesting an extension of a previously approved Variance.
Applicant did not appear
Board Discussion
^ 9 cases for May agenda
^ Possibility of splitting to 2 nights
^ 2 members cannot be there Thursday May 11
^ Run 2 consecutive nights; May 9 and 10tH
^ OK with Board members present
^ Marilyn will contact Neva
Motion made by Mr. Harrison to adjourn. Second by Mr. Stewart. Vote 7-0-0.
Meeting adjourned at 8:30 PM.
Respectfu Ily,
Marilyn Moo r % Clerk /
cc: To Clerk
Selectmen
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ZBA Minutes
04-11-06