HomeMy Public PortalAboutZoning Board of Appeals -- 2006-05-09 MinutesDate approved ~ ~~ ~d~
Vote
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
May 9, 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 and Neva Flaherty. Member absent: Philip Jackson.
OLD BUSINESS
^ Minutes of April li, 2006 approved as written. Motion made by Arthur Stewart. Second by
Paul Kearney. VOTE 8-0-0.
^ Chairman, Harvey Freeman presented a card for Philip and Elizabeth Jackson from the Board
expressing our concern and best wishes.
^ Chairman Freeman expressed indefinite inactive list for Philip Jackson. Board approved this
petition.
^ MA Federation of Planning and Appeals Boards, 2006 Spring meeting. Invitation in packet.
NEW BUSINESS
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.
This is a CONTINUANCE from March 14, 2006.
Due to LOA of a member hearing this case, Mr. Nixon replaced Mr. Jackson.
Members hearing this case were Messrs. Harrison, Nixon, Freeman, Kearney and Ms. Flaherty.
Mr. John P. McCormick (Attorney) represented Ms. Baier. Ms. Meridith Baier was present.
Mr. McCormick gave a brief review of the case. Ms. Baier is an immediate abutter to Foster
Square and specifically the Thai Restaurant. In 1990 a Special Permit was issued by the ZBA,
recorded at Registry of Deeds in Barnstable and allowed to proceed. In 2006 an application was
presented for the same unit to modify the Special Permit to increase seating capacity. This was
denied and allowed to continue as previously decided under new ownership.
Ms. Baier feels that anything that varies from the Special Permit, requires a new hearing, even if
pre-existing. To be decided on a case by case basis. It would have a different effect on the
neighborhood including noise (Powers v Barnstable), traffic, hours of operation (Donovan Drugs v
Hingham) and increase in seating.
The comparison of 1990 to 2006 is relevant as to the different effect on the neighborhood. Since
1990 the area has added a refrigeration unit in the fire lane, exhaust fans, "sheds" have intruded
into fire lane and expanded delivery trucks. These make a change. This case should be decided
on the effect these changes have on the neighborhood.
Other changes of the permit include increase of hours of operation.
At the March hearing, the applicant noted she (or a spokesperson) did not have the funds for a
handicapped bathroom at this time so it would be take-out only. This takes it out of the
definition of restaurant in the Brewster Zoning Bylaws.
Board Discussion
^ Mr. Freeman asked if anyone was to speak on behalf of the Thai Restaurant.
^ Victor Staley (Brewster Zoning Agent) noted that the 1990 Special Permit had little or no
specifics. It was written in general terms with no limitations but did note 8 seats. Bathrooms are
an building department issue. Coolers and fans were added later. As complaints were made to
the Zoning Agent they were investigated.
-1-
^ Mr. Freeman noted a couple of Special Permits have been issued on this facility asking for
increased seating. ZBA decision remained the same- no more than 8 seats.
^ Mr. Staley mentioned increased seating is not part of this discussion. The request to increase
seat was previously rejected by the Board. He feels old issues -fire lane and coolers distracted
the Board -when they made this decision. Decision stands as made.
^ Mr. Nixon (speaking to Mr. Staley) that when the permit was before us previously it was
mentioned as take-out only. Was this mentioned when the permit was issued?
^ Mr. Staley explained applications are fluid. The 8-seat application was not amended. It was
issued as applied.
^ Mr. Nixon asked that if just take-out would it change to not a restaurant definition.
^ Mr. Staley said the definitions serve as a zoning process.
^ Mr. Freeman said as a follow-up- the Board of Appeals did not permit 25 seats, they kept the
Special Permit at 8. The Building Permit was issued up to 8 seats. If it said 0 seats this is not a
restaurant.
^ Mr. Staley said there is a lot of latitude from the 1990 Special Permit.
^ Mr. Freeman asked if Mr. McCormick would like to comment.
^ Mr. McCormick said during the March meeting it was stated no seats, dining tables trigger
"accessible bathroom" so owner intended 0 seats due to cost of this project.
^ Mr. Kearney asked Mr. Staley if this triggered a change of use in his opinion.
^ Mr. Staley said he would have to think that through.
^ Ms. Flaherty asked if someone came in tomorrow with a request for no seats, what label
would that come under and would a Special Permit be needed.
^ Mr. Staley said that would be a prohibited use.
• Ms. Flaherty asked why is this still a restaurant with no table service.
^ Mr. Staley said that this original permit had no table service just sit down.
^ Ms. Flaherty asked how does that fit the definition.
^ Mr. Staley said the Zoning Board made that decision to the best interest of the town, if not
appealed then the decision stands.
^ Mr. Harrison noted that whatever the Board decided in the past may not be right. They
followed definitions of the past. He feels no tables is a restaurant by definition.
^ Mr. Freeman stated tables, not wait service constitute a restaurant. It is fluid.
Open to Public Input
^ Mr. Henry Hayes (Breakwater Road) noted that if there is a problem with visibility from 6A
this is an HDC issue. Have they approved freezer and compressor?
^ Mr. Freeman said the Fire Department inspected and determined the narrow fire lane (letter
Oct. 4, 2000). In the past HDC not involved.
^ Mr. Hayes asked if HDC approved.
^ Mr. McCormick said a letter was written but it went no further. They tried to bring violations
forward to Mr. Staley for enforcement.
^ Mr. David Thyng (previous Zoning Agent for Town of Brewster) noted various agencies
looked into it. Not visible from 6A.
^ Susan Carpenter (Crafters Landing) noted she was told it was not an official fire lane just an
access road. Dining tables in Thai restaurant not a big difference from Seafood or Bayside
Gourmet. Is it necessary to have accessible bathroom?
^ Mr. Staley said in 1990 review there were 2 bathrooms, accessible to the outside. They are
since defunct. If there is seating they will have to have accessible bathrooms.
^ Ms. Carpenter asked why the previous tenant did not do this.
^ Mr. Staley said an oversight.
^ Beth Barber (resident) asked that Ms. Barber asked that if they have one seat do they need
an accessible bathroom?
^ Mr. Staley said yes.
^ Ms. Barber asked if this is the same as before.
^ Eric Barber said if traffic is a concern, take out means less cars, just come and go is less.
^ Mr. McCormick noted the following 3 issues of concern;
1. Issue with the cooler, noted as a concern previously (9-13-01), nothing further.
-2-
2. 1-28-06 understood the cooler installation addressed. Nothing to pursue.
3. Traffic increases if purely takeout.
^ Mr. Barber said he feels if seated there is more traffic.
^ Mr. McCormick stated without seating there is more traffic.
^ Jeffrey Wortermeirer asked how Ms. Baier property relates to the issue.
^ Mr. McCormick said it directly abuts this property.
^ Mr. Wortermeirer noted the other side of the property is Sparkfish (another restaurant).
^ Mr. McCormick noted the zoning district is business.
^ Stefan Brown (Herb Shop) noted that that section was set for business use, the
neighborhood is business zoned. Increase of sound and traffic increases business. That is the
perspective of the neighborhood. Brewster is different in definition of restaurant; we don't fit
into this definition for food service. Building Departments interpretation is based on the intent of
the law.
^ Mr. Staley noted that we need to clarify a lot of issues.
^ Lisa Wisley presented a petition from neighborhood to support the Thai restaurant.
^ Midge Day (business owner at Foster Square) noted the neighborhood needs support for
business. Variety makes it important and valuable. The Thai restaurant is a wonderful addition
to the square. Traffic is a natural addition to business. Traffic is needed. Brewster has taken a
look at it business areas.
^ Sam Hopkins (neighbor) noted that within neighborhood business zones noise does happen.
If you live in a business zone you must accept that.
^ Mr. Hayes asked how old is Ms. Baier's home?
^ Ms. Baier said 1919 and 1929.
• Mr. Staley noted this are is designated as Village Business District with a meld of both uses.
^ Mr. Freeman asked what is Ms. Kelly planning to do-up to 8 seats?
^ Ms. Kelly said that she wishes to do a restaurant with 8 seats but she must work with the
Board of Health.
^ Mr. Staley added a Certificate of Occupancy has not been issued yet.
^ Mr. McCormick added in terms of Foster Square, the original site plan was for office space
with a restaurant on the end. In terms of places with many tables (Cobies and JTs) protected by
predate. Ms. Baier's property was there long before Foster Square. Corridor Overlay District
controls traffic. Objective is to have a blend not to overwhelm businesses that are there.
^ John McMullen (Foster Square) noted that residential was there but Ms. Baiers property is
zoned commercial. It was purchased knowing exactly what was around or surrounding her.
Motion made by Mr. Harrison to close to Public Input. Second by Mr. Nixon. Vote AYE (5-0-0).
Further Discussion
^ Mr. Kearney- if intent is to continue to go through with the seating as stated at up to 8 then
he is OK.
^ Mr. Harrison- feels the same way. Some level of seating for restaurant. Unfortunate the
Bylaw does not define change of use.
^ Ms. Flaherty-disturbed by 2 opposite issues; seating or not. Matches previous Special Permit
but March meeting indicated no seats. Until I know accessible bathroom is going in then I feel it
does not meet definition.
^ Mr. Freeman-what Ms. Kelly has planned to do is a concern, but she just stated in open
forum she will have seating.
^ Mr. Nixon- concerned about change of applicant and inconsistent of Bylaw. We really need
to go with the permit as issued.
^ Mr. Kearney to Mr. Staley- if issued in present condition does it need accessible bathroom?
Can it do without bathroom?
^ Mr. Staley- N0.
^ Ms. Flaherty noted if no accessible bathroom, restaurant couldn't be opened.
^ Mr. Harrison stated if no table service Ms. Kelly must return to ZBA for change of use.
-3-
Motion made by Mr.Harrison in regard to case 06-06 to uphold the Zoning Agents Decision under
MGL 40A, sections 8 and 15 and Brewster Bylaw 179-11 regarding change of use at Foster
Square if seating is provided (up to 8 seats). Second by Mr. Kearney. Vote 5-0-0.
05-42Steven + ]anet Albahari and David + Andrea Cataldo, Lots 10 + 11 Doran Drive,
Map 23 Lot 67. CONTINUANCE. The applicants seeks an Appeal of the Zoning Agents
decision
Members hearing this case were Messrs. Harrison, Stewart, Freeman, Kearney and Ms. Flaherty.
Attorney Peter Farber represented Mr. Albahari. Mr. Steven Albahari was present.
Attorney Walter McLaughlin representing Mrs. Owocki. Mrs. Owocki was present.
Mr. Farber noted that extensive presentations have been made in the past. Attorney Michael
Ford had written an opinion as per Zoning Board request representing the Town of Brewster,
noting the town was under an obligation to uphold the Building Permit. The Board is to
determine if everything had been done to procure this permit.
Mr. McLaughlin read a letter in its entirety, received 5-9-06 as a statement of Everett W Boy Jr.
with respect to the issuance of the building permit at 45 Doran Drive.
Mr. McLaughlin stated after reading the above mentioned document that this frames the issue as
noted in Mr. Fords opinion letter and thus the issuance of the building permit should be upheld.
Mr. Farber stated that nothing prevented Mr. Boy from filing for the permits. The Zoning Agents
has no obligation to do that for him. Mr. Boy never paid the fee. The town does not issue
permit until paid. After September 28 his opportunity was lost.
Questions from the Board
^ Mr. Freeman noted Mr. David Thyng (previous Zoning Agent) was present to answer any
questions from the Board.
^ Mr. Thyng commented that this could have been prevented if everyone was straightforward
from the beginning. Comparing soil names from 1970 to 1995 was a By-law problem. Go
back and look at the definition; the Amostown soil is basically the same as Walpole soil, just
further defined. Basically the same- conservancy soil not further defined back then. Still a
conservancy soil-old or new term.
^ Mr. Freeman asked Mr. Thyng is he would issue the permit under the old definition?
^ Mr. Thyng said N0.
^ Mr. Freeman asked Mr. Thyng is he would issue the permit under the new definition?
^ Mr. Thyng said N0.
^ Mr. Stewart noted the copy of the 2000 Building Permit Application; fee has a check number
indicated. Plan review must have a deposit. When permit is issued then credit is given for
the deposit, no fee was paid in full.
^ Mr. Freeman said normally when application is filed, areas are checked as completed and
paid.
^ Mr. Thyng said there is a checklist of additional needs.
^ Mr. Freeman asked what is the time frame from first application to issuance.
^ Mr. Thyng said varies; 9-29-00 letter was sent indicating items not settled. Board of Health
was asked not to take action. Soil log-undesirable materials that had to be removed and
replaced were not done.
^ Mr. Freeman asked about the errors in the letter of March 14, 2006; #3 at 45 Doran Drive
should read September 25, 2005 not 2006 and #5 May 1990 incorrect date, should be May
2000.
^ Mr. Thyng stated the foundation plan was presented with the permit application on 9-28-
2000.
^ Mr. Freeman asked how many permits were issues in time frame.
^ Mr. Thyng noted septic, Driveway and Workman's Comp certificate.
^ Mr. Staley verified that that information is correct.
^ Mr. Thyng stated that when he reviewed the application as not complete he noted soils
conservancy and sent applicant to Zoning Board.
-4-
^ Ms. Flaherty asked that if in the time frame between 9-29-00 and 9-13-01 (first notice of soil
Bylaw) which one of these deficiencies was satisfied.
^ Mr. Thyng said NONE.
^ Ms. Flaherty noted according to Mr. Boy's statement the septic was done on 3-8-01.
^ Mr. Thyng said they never came to him, it was Mr. Boy's obligation to get that to the Building
Department.
^ Ms. Flaherty asked about the driveway permit.
^ Mr. Thyng said N0.
^ Ms. Flaherty added; changes to the foundation.
^ Mr. Thyng said N0. Everything was put aside when it went to appeal.
^ Ms. Flaherty stated if they had a septic and workman's comp in existence but not in your
hands by 3-13-01-no driveway or no foundation plan.
^ Mr. Thyng said this is ministerial; pay the fee/receive the driveway permit. Must dot all "I's"
and cross all Ts" according to the state code.
Open to Public Input
^ Diane Halunem (Mrs. Owocki's daughter) noted that with all the hoops they had to jump
through regarding confirmed soils conservancy, they comply with everything and the court
said she is right.
^ Mr. Steven Albahari (abutter) said they contest one thing- knowledge that this is unbuildable
lot, it is taxed an unbuildable lot.
^ Mr. Bill Barber (Brewster resident) citizens of Brewster work to make things right, getting
Bylaws up to date. Doran Drive homes are all up on a rise. Homes requesting to build below
or at street level must be aware of problems.
^ Mr. Thyng said the soil survey of 1995-Peter Fletcher, soils scientist, bring Brewster Bylaw up
to speed. Brewster definitions to Cape Cod Commissions to update soils hadn't changed but
definitions have.
^ Mrs. Lucille Owocki added why permit was issued to Sea Meadow last year -same soil, same
soil expert.
^ Mr. McLaughlin said the legal issue upheld the building inspector.
^ Mr. Farber said September 28th change of date, initial submission from 1983 mentioned the
lots were unbuildable.
1. Soil have not changed, just the name, different nomenclature.
2. Document for building permit filled out in 2000 not completed until 2005.
3. Mr. Fords letter said the "burden to applicant" to show entitlement thus they could have
gotten the permit but didn't do it.
^ Mr. Staley said he supported David Thyng -until everything is complete no permit is issued.
2001 no driveway permit, applicants burden to bring it in, all that time same conclusion.
Motion made by Ms. Flaherty to close to Public Input. Second by Mr. Harrison. Vote AYE (5-0-0).
Board Comments
^ Mr. Stewart-leaning toward the builder/owner. Mr. Boy could have gotten the permit with a
little more work. He feels the ZBA should uphold the Zoning Agents decision to issue.
^ Ms. Flaherty-opposite point of view. Putting aside soils condition, how can we say this
building permit could be issued? Discretion and decision-making power of the Building
Inspector.
^ Mr. Harrison -initially we made the wrong decision. All permits are readily obtainable. No
Building permit is issued without other permit completion.
^ Mr. Kearney- feels the same way. Mr. Boy may have dropped the ball but we can't penalize
the owner. Permit should have been issued.
• Mr. Freeman-feels much the same as the others. One of the reasons the ball was dropped,
people expected it to be litigated, thus the required elements were halted and the zoning
agent was upheld.
Motion made by Mr. Harrison in regard to case 05-42 to uphold the current Zoning Agents
Decision under MGL 40A-8, section 15 and Brewster Bylaw 179-6 (B) to issue a building permit
-5-
for a single family dwelling within Wetlands Conservancy District. Items on the list could have
and were quickly satisfied to uphold the issuance of Building Permit. Second by Mr. Stewart.
VOTE 4-1-0. (Ms. Flaherty voted against).
06-13Dwight and JoAnn Ritter, 21 Foster Road, Map 15 Lot 83. The applicant seeks a
Special Permit under MGL 40-A-9 and Brewster Bylaw 179-14, section 16, Table 2, Note 14 to
create an in-law apartment over the attached garage.
Members hearing this case were Messrs. Harrison, MacGregor, Kearney and Ms. Flaherty and
McInerney.
Mr. Ritter presented a brief overview of his application. He would like to build an in-law
apartment over the already built attached garage. Plans indicate it to be 588 square feet in size.
Discussion
^ Mr. Freeman asked if Mr. Ritter was familiar with Note 14 of the Zoning Bylaws regarding
occupancy of in-law apartment. Restrictions being to family member or caretaker of family
member and cannot be rented.
^ Ms. Flaherty asked if this is connected to the main house.
^ Mr. Ritter said it was physically attached.
^ Ms. McInerney asked if we are following the intent of the provision. She also noted there
have been several additions to this house.
^ Mr. Ritter said in 1996, the center addition was added and in 2004 a porch.
Open to Public Input
Motion made by Mr. Harrison to close to Public Input. Second by Mr. Flaherty. Vote AYE (5-0-0).
Thoughts of Board
^ Mr. MacGregor-meets requirement of Bylaw
^ Mr. Harrison- OK
^ Mr. Kearney-OK
^ Ms. Flaherty-OK
^ Ms. McInerney feels a private entrance may be an issue and it is detrimental because of the
size with several previous additions.
^ Mr. Kearney said it is not crowded, fits the area.
^ Ms. Flaherty felt it was not crowding the neighbors.
Motion made by Ms. Flaherty to GRANT Special Permit for in-law apartment to be built over
attached garage subject to conditions of Note 14. Second by Mr. MacGregor. VOTE 4-1-0.
(Ms. McInerney voted against)
06-14 7effrey Thibodeau, 215 Canoe Pond Road, Map 36 Lot 219. The applicant seeks a
Special Permit under MGL 40A-9 and Brewster Bylaw 179-14 to transfer an existing permit for an
in-law apartment to new owner.
Members hearing this case were Messrs. Harrison, MacGregor, Stewart, Nixon and Ms.
McInerney.
Mr. Thibodeau was asked to present a brief overview. Mr. Thibodeau said he and his fiancee
would like to purchase this property and transfer the previous permit for the in-law apartment.
Discussion
^ Mr. MacGregor asked the purpose of this apartment.
^ Mr. Thibodeau said might be used for family members.
^ Mr. MacGregor said it is not to be used as an apartment. The Bylaw defines the use.
"Might" is not a possibility, make sure you understand the Bylaw.
-6-
^ Mr. Harrison asked if there was a specific need.
^ Mr. Thibodeau said the Zoning Agent indicated this would be an easy transfer.
^ Mr. Harrison asked if they move into the house will this unit sit vacant.
^ Mt. Thibodeau said it might.
^ Mr. Harrison said the town has a rental process.
^ Mr. Thibodeau said they did not want to rent. It would be for use of family members as
stated in the Bylaw.
^ Mr. Freeman said the Bylaw does not mandate health issues. In-laws or family members or
health care provider.
^ Mr. Harrison that the owner files an affidavit with the Building Inspector as to whom is living
there.
^ Mr. Thibodeau said the major reason for the permit is to provide far family members.
^ Ms. McInerney asked if the transfer of the permit was contingent upon the sale.
^ Mr. Thibodeau said not a contingency of the P+S.
^ Mr. Nixon said essentially this is a new permit.
^ Mr. MacGregor said he is not against these permitting, just wants it taken seriously.
Open to Public Input
^ Ron Thibodeau (applicants Father)- similar to B+B transfer. Coming back to the Board for
consideration,
Motion made by Mr. Harrison to close to Public Input. Second by Mr. Nixon. Vote AYE (5-0-0).
Board Comments
^ Mr. Harrison is in favor of application with an affidavit to Building Commissioner.
^ Mr. Nixon in favor of a new permit.
^ Ms McInerney felt it was not following the Bylaw as written. It does not satisfy her with a
sense on in-permanence.
^ Mr. Freeman asked if there was a way to satisfy that.
^ Mr. Harrison said it is not transient in nature.
^ Mr. Stewart said "overflow company" is not part of the intent.
^ Mr. MacGregor asked if the Board could limit it as part of the Bylaw.
Motion made by Mr. Harrison to GRANT Special Permit under MGL 40A-9 and Brewster Bylaw
179-14 for an in-law apartment with the condition the applicant file an affidavit of who is
occupying apartment with the Building Inspector. Second by Mr. Nixon. 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 and/or reissue of a previously approved Variance (04-45) which allowed
the applicant to continue use of the existing dwelling during construction of a new home.
Members hearing this case were Messrs. Freeman, MacGregor, Kearney, Nixon and Ms. Flaherty.
Mr. Lucier was asked to present a brief description of his request. He stated he would like an
extension of his previous Variance as indicated in his letter to the Board.
Mr. Richard Roy (Builder) was also present.
Discussion
^ Mr. Roy noted all processes were started for the Building Permit but due to illness of owner it
expired. Nothing has changed within the scope of the project.
^ Mr. MacGregor asked when it expired.
^ Mr. Lucier said the Zoning Agent did not notify him.
^ Mr. Freeman said it was an oversight on our part and a change has since been made to
application form to indicate time frames.
^ Mr. Roy said it should be made clear as to the length of time for each permit process.
^ Mr. Freeman said the original couldn't be extended. The Board should look at the original
decision, and if applicable grant a new Variance.
-7-
-8-
Open to Public Input
Motion made by Mr. Nixon to close to Public Input. Second by Mr. Kearney. Vote AYE (5-0-0).
Comments
^ Mr. Kearney feels it is pretty straightforward.
Motion made by Mr. Nixon to GRANT a Variance, with conditions of 04-45 filed with Town Clerk
as to same finding and conditions, allowing the applicant to continue use of the existing dwelling
during construction of a new home. Second by Ms. Flaherty. VOTE 5-0-0.
Motion made by Mr. Nixon to adjourn meeting.
Second by Mr. Stewart.
VOTE 7-0-0.
b b: $ ~ 6 l l~U' ~•
Respectfully,