HomeMy Public PortalAboutZoning Board of Appeals -- 2006-08-08 MinutesPage 1 of 7
Date Approved 9-12-16
Vote 8-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
August 8, 2006
Meeting Minutes
Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were; Brian
Harrison, Harvey Freeman, John Nixon, Suzanne McInerney, Arthur Stewart, and Bruce MacGregor, and
Neva Flaherty. Members absent: Paul Kearney and Philip Jackson.
OLD BUSINESS
^ Minutes of May 10, 2006 approved as written.
MacGregor. VOTE 7-0-0.
^ Minutes of June 13, 2006 approved as written.
MacGregor. VOTE 7-0-0.
Motion made by Arthur Stewart. Second by Bruce
Motion made by Neva Flaherty. Second by Bruce
NEW BUSINESS
06-17 Steven and Eunice Harrigan, 27 Thousand Oaks Drive, Map 42 Lot 73-2. The applicant
seeks a Dimensional Variance under MGL 40A-10 and Brewster Bylaw 179-52, Section 16, Table 2 to
maintain the existing deck on the rear of the home with relief of the side/rear lot line requirements.
CONTINUANCE
Members hearing these cases were Messrs. Harrison, Stewart, Nixon and Ms. McInerney and Flaherty.
Presenting information regarding this application were Mr. and Mrs. Harrigan, Ashley Harrigan, and
William Marsh (builder).
Mr. Marsh gave a brief overview of what had occurred at the previous hearing.
To verify the existence of the deck within the statute of limitations, as requested by the Board, the
Harrigan's presented photographs of the deck at their daughter's 5th birthday party, her birth record and
photos and a building permit to show the existence of the deck.
The deck is about 11.5 years old. The Building permit was issued 10 years ago.
Open to Public Input
• No one spoke to the issue
Motion made by Mr. Harrison to Close to Public Input. Second by Mr. Nixon. VOTE 5-0-0.
Board Discussion
^ Mr. Harrison is comfortable with the statute of limitations decision.
^ Mr. Stewart agrees
^ Ms. McInerney agrees
^ Ms. Flaherty agrees
^ Mr. Nixon fine
Motion made by Mr. Harrison that the statute of limitations were met thus the Variance is not required.
Second by Mr. Stewart. Vote 5-0-0.
ZBA minutes 8-8-06
Page 2 of 7
Motion made by Mr. Nixon to WITHDRAW without prejudice the Dimensional Variance under MGL
40A-10 and Brewster Bylaw 179-52, Section 16, Table 2 to maintain the existing deck on the rear of the
home with relief of the side/rear lot line requirements. Second by Mr. Harrison. VOTE 5-0-0.
Mr. Stewart YES
Mr. Harrison YES
Mr. Nixon YES
Mr. Flaherty YES
Mr. McInerney YES
Mr. Freeman asked Mr. Marsh to explain Victor Staley's letter regarding the foundation.
Mr. Marsh noted the town required the foundation to be certified. There was a discrepancy in what was
approved and what was built and poured. On July 3, 2006 new plans were submitted correcting this.
Motion made by Mr. Harrison to ACCEPT PLANS (signed and dated) substantially the same as were
approved. Second by Ms. Flaherty. VOTE 5-0-0.
06-18 Mr. and Mrs. Thomas ]. Copley ]r., 26 Agassiz Street, Map 33 Lot 285. The applicant
seeks to overturn or amend the Zoning Agents decision and/or seek a use Variance under MGL 40A,
Sections 8 and 15 and Brewster Bylaw 179-52 regarding vehicles on property. CONTINUED
Members hearing these cases were Messrs. Harrison, Stewart, Nixon, Kearney and Ms. McInerney.
Mr. Kearney is not present this evening Ms. Flaherty will replace him.
Mr. John Copley was asked to give a brief overview of this application.
Mr. Copley noted that the Building Inspectors letter of )uly6, 2006 indicated multiple vehicles on the
property, staging on a ladder trailer, a sign issue and business being run from the property. This has
been condensed and the lot is large enough for trailers not to be viewed from the street.
Mr. Copley presented a decision from previous case of similar situation (00-97-Motto) for Board to
review. Mr. Copley also presented additional pictures of the site for the Board and file.
Board Discussion
• Ms. Flaherty asked if trucks with ladders go in and out daily?
• Mr. Copley noted once or twice a month.
• Ms. Flaherty asked if they go to the job site and are left there?
• Mr. Copley said yes.
• Ms. Flaherty mentioned; in the winter-4 months- how do you get back and forth to work
• Mr. Copley said he usually doesn't work construction in the winter- just plowing.
• Mr. Nixon asked if the snow plowing sign has been removed.
• Mr. Copley said yes.
Open to Public Input
• Mr. Helmut Schneider (abutter) spoke that this was not true; trailer stays on the property and goes
in and out daily. Takes time to load in the morning and unload upon return. Bathroom facilities are
not available to these people coming in and out.
• John Copley spoke that this is embarrassing that it has come to a neighborly dispute. Trailers do
not come in and out. No comment on the sanitary facilities.
Motion made by Ms. McInerney to Close to Public Input. Second by Mr. Nixon. VOTE 5-0-0.
Further Discussion
• Mr. Harrison notes it is a Cape Cod tradition that contractors work vehicles are kept at home site.
ZBA minutes 8-8-06
Page 3 of 7
Employees (partners and sub contractors) should not congregate there.
• Mr. Stewart said it seems there are 2 opposing opinions. He looked at the site and saw ladders in
the back of the property and 2 pick-up trucks. He doesn't know how to determine what is factual.
• Mr. Harrison noted that the definition of what is a business is up to the Zoning Agent.
• Ms. McInerney feels a commercial business is being conducted. In comparisons to the Deer Path
Circle case, abutters had no problem. The Board made some strict conditions.
• Mr. Nixon noted that at the previous meeting there was an abutter in favor of this application. If we
go ahead and approve this, someone must monitor it more closely. Two opposing points of view.
• Ms. Flaherty agrees with Mr. Nixon, if we vote in favor of the applicant there must be conditions and
monitoring as to the coming and goings.
• Mr. Harrison stated that is kind of unrealistic from a Zoning Agent position.
• Mr. Freeman noted if we give appropriate conditions would it be that difficult.
• Mr. Harrison said if it was similar to Motto but add "employees, subcontractors and partners not
coming to the site" as additional language.
• Ms. Flaherty asked about adding some vegetative screening for coming down the street.
• Mr. Freeman added they can encourage the Building Inspector to provide surveillance as he sees fit.
• Ms McInerney noted it seems a burden on the Building Inspector. Conditions can show how serious
the Board is about compliance. She agrees about vegetative screening.
• Mr. Harrison asked to define screening.
• Ms. Flaherty said evergreen screening located in a way to allow access but block view from the
street. 3-4 evergreens to the front of the shed to block behind thee shed.
• Mr. Stewart asked the sense of the Board to fit into Home Occupation.
• Ms. Flaherty said it doesn't fit the definition but as Mr. Harrison stated it is a "Cape Cod tradition".
• Mr. Stewart asked what is different from a person with a company truck vs. own truck or
equipment.
• Mr. Harrison said it is not applicable as Home Occupation.
• Mr. Freeman asked if we are in support of or overturn the Building Inspector.
• Ms. Flaherty said Mr. Staley's letter says Commercial activity is occurring.
• Mr. Freeman said Victor is looking for some guidance.
• Ms. Flaherty feels that no home occupation but business activity is going on.
• M. Stewart said we could define what can happen within our decision.
Motion made by Mr. Harrison that finds the activities do not constitute commercial activity and with the
following conditions in place overrule the Cease and Desist order.
1. only two utility trailers and one pickup on the premises
2. all other equipment kept within the shed or at a remote location off-site
3. no other equipment on the site.
4. no employees, sub contractors and partners come to or work from site
5. vegetative screening as discussed above.
Second by Ms. Flaherty. Vote 5-0-0
Mr. Freeman suggests the applicant withdraw the use Variance as requested.
Mr. Copley agrees and signs withdrawal form.
06-20
T. Edmund Daly and Karen Lieberman-Daly, 12 Six Penny Lane, Map 19 Lot 73. The applicant
seeks Special Permits and/or Variances under MGL 40A, Section 6 and Brewster Bylaw 179-25 for the
change, extension, and alterations of apre-existing nonconforming single family dwelling on a pre-
existing nonconforming lot.
Members hearing these cases were Messrs. Freeman, MacGregor, Nixon, and Ms. McInerney and Ms
Flaherty.
Attorney Steven Jones represented the applicant.
Mr. and Mrs. Daly were present as well as Mrs. Daly's mother (Jean Liberman).
ZBA minutes 8-8-06
Page 4 of 7
Mr. Jones was asked to give a synopsis of all requests;
1. Special Permit for alteration and extension of apre-existing non-conforming screen porch to be
enclosed -GRANTED
2. Accept current first floor deck as having been in place for more than 10 years.
• Building permit for deck issued in August 1995 completed in fall 1995.
3. Special Permit for alteration of first floor deck to a screened porch with a deck above and stairs from
deck to ground.
4. Variance to allow new construction of approximately 30 square feet.
5. Variance to allow an addition in apre-existing non-conforming dwelling within Wetlands
Conservancy District
6. Variance to allow relocation of the existing pump chamber of the septic system within Wetlands
Conservancy District
Mr. Jones provided information regarding test holes from Bennett + O'Reilly. Sites 1-2-3-5 were 68"
deep and considered disturbed sandy fill soil. Test hole 4, 6 + 7 are Freetown soil, hole #8 is Walpole
soil. Major portion of the house in area not identified as conservancy soil.
Board Discussion
• Ms. Flaherty noted the whole project lies in the Wetlands Conservancy District. Are we going to let
a project like this go on in these areas? A Variance is needed within 50' of soil area. 6-7-8 still in
Conservancy Soil area. Ms. Flaherty provided maps for the Board and Mr. Jones.
• Mr. Jones noted most mapping of Soils Conservancy areas are from aerial views. Until test bores
are done they don't know what type. They do concede there are soils on the lot not in the proposed
addition area.
• Ms. McInerney said that after soil samples 4,6,7,8 the major portion could not be identified.
• Mr. Jones said that major portion do not show Wetlands Conservancy soil, just disturbed sandy soil.
• Mr. MacGregor said Cons Com findings are not tied to that "site specific".
• Mr. Jones said that Cons Com only dealt with vegetative planting.
• Ms. McInerney asked if when they spoke with Cons Com did they elaborate on Wetlands
Conservancy soil.
• Mr. Freeman noted that they do not deal with Wetlands Conservancy soil just conservation issues.
• Mr. Jones stated there is an existing Title V and the number of bedrooms will remain the same.
• Mr. Nixon noted Briar Lane was similar with Wetlands Conservancy District not wetlands.
• Mr. Freeman said spot locations where a structure is proposed should be tested.
• Mr. MacGregor asked if Board of Health had input regarding the pump chamber. Is it under the
deck? Is that the current tank for the house?
Motion made by Mr. MacGregor to GRANT as an ANR #2 in proposal for current existing deck. Second
by Mr. Nixon. VOTE 5-0-0.
Open to Public Input
Motion made by Mr. Nixon to Close to Public Input. Second by Ms. Flaherty. VOTE 5-0-0.
Further Discussion regarding #3
• Ms. McInerney asked if footers would be put down?
• Mr. Freeman said yes, to support 2"d floor.
• Ms. McInerney asked if this could be done within wetland area?
• Mr. Freeman said yes, not within the soils itself.
• Mr. Karver notes the existing footings are 3' now but must be increased to 4'. Not infavor of
expanding construction within the 50' wetlands inclined to leave the deck as is.
• Mr. MacGregor asked if sonar tubes need to be replaced?
• Mr. Karver said to rebuild the deck they must replace the tubes. New excavation with sonar tubes
to support 2 floors.
• Mr. Nixon asked what soil is there?
ZBA minutes 8-8-06
Page 5 of 7
• Mr. Jones said most likely disturbed sandy soil.
• Mr. Freeman asked if some house construction soil would be used for septic.
• Mr. Karver said no on site materials can be used for septic.
• Ms. Flaherty asked is we are concerned with the 50' setbacks?
• Mr. Freeman said only with Special Permit.
• Ms. Flaherty said she is inclined not to give permit for #3. Can we leave #3 and discuss 4 and 5?
• Mr. Freeman asked the Daly's what does this deck do for you?
• Mr. Daly said the screened porch adds much to their enjoyment of the marsh and the outdoors.
They use it to gather and the area is an area to enhance their lifestyle.
• Mrs. Liberman said it is the most charming part of the house.
• Mrs. Daly added that with the new design of the house, the living space is on the second floor, the
deck is an expansion of the living room space. Vital to enjoy the deck and view.
Board Discussion regarding #4
• Mr. Nixon asked for more information on the Variance criteria for this section; hardship-to
construction details and topography with interlacing wetlands.
• Mr. Jones explained the Hardship as to trying reconfiguring the house on a lot 75% in the 50'
setback. Thus it set a strange corner to match up with existing structure.
• Mr. Nixon noted that the 3 Variance issues are tied together with soil issues. The ground had been
previously disturbed. He is having trouble justifying the hardship issue with all 3.
• Mrs. Daly said this is a little cottage with small living spaces and a small 2~d floor. Hard to maintain
the property beauty and create a permanent structure to live here year round. Maximize what we
had and add on -the size constitutes a hardship.
• Mr. Daly stated they had no where else to go on the property, to stay within a safe area and not
offending wetlands and neighbors. Everything to accommodate the area and not disturb anything
else.
• Mr. MacGregor saidtoday you have 12-1300 square feet increase to 2300 square feet. He cannot
support this, just too much.
• Ms. Flaherty spoke that she sympathizes with the love of the land but that she cannot see a
hardship. Expansion too much on this property. Maybe that little house is all that it can stand.
• Mr. Freeman asked if there is any part you could do without.
• Ms. Flaherty reminded the Board that #1 was already approved.
• Mr. MacGregor noted why do they need a house twice as big?
• Ms. McInerney noted the hardship relates to the soil. To be considered a Variance it is literally
against the bylaw.
• Mr. Nixon said that he understands the emotional attachment but this seems too much for a small
piece of property.
• Mr. Jones stated they applicant may consider a withdrawal without prejudice to determine another
way to configure this with less impact. What would be acceptable; scaled back addition?
• Mr. MacGregor said this is mentioned as a cottage, he doesn't see more living space.
• Ms. Flaherty said that whatever is done needs a Variance on soils issue.
• Mr. MacGregor said this is a 2-story house with knee walls, perhaps a different design of roofline. Do
not expand the footprint.
• Ms. McInerney said that Mr. MacGregors' idea appeals to her.
• Mr. Nixon feels that the footprint should stay the same.
Mr. Jones asked fora 5-minute recess to consult with applicant
• Mr. Jones asked for a withdrawal without prejudice
Motion made by Ms. Flaherty to accept WITHDRAWAL without prejudice regarding the request of
06-20 T. Edmund Daly and Karen Lieberman-Daly, 12 Six Penny Lane, Map 19 Lot 73 for Special Permits
and/or Variances under MGL 40A, Section 6 and Brewster Bylaw 179-25 for the change, extension, and
alterations of apre-existing nonconforming single family dwelling on apre-existing nonconforming lot.
Second by Mr. Nixon. VOTE 5-0-0.
ZBA minutes 8-8-06
Page6of7
06-22 ]ean-Paul Rutledge, 29 Partridge Circle, Map 13 Lot 9. The applicant requests to
modify existing Special Permit conditions of previously granted Special Permit 02-51 under Brewster
Zoning Bylaw, Art. VIII, Sec. 179-25 B.
Members hearing these cases were Messrs. Freeman, Harrison, Stewart, Nixon and Ms. McInerney.
Attorney Roger O'Day represented Mr. Rutledge.
Mr. JP Rutledge was present.
Mr.O'Day was asked for a brief overview.
A Special Permit had been granted on April 17, 2003 with conditions. The applicant requests Condition
"C" modified. During the December 9, 2005 storm 2 trees were lost thus opening the lot. This is not
substantially detrimental.
Board Discussion
• Mr. Stewart asked if Mr. Rutledge owns both properties.
• Mr. Rutledge said YES
• Mr. Stewart noted the shed was very visible. Why was the shed put in that position?
• Mr. O'Day said a permit was applied for and granted.
• Mr. Freeman feels that the decision was not read or ignored.
• Mr. O'Day said they went through the proper channels applying for the permit.
• Mr. Freeman noted the Special Permit issued "to remain green space".
• Mr. Nixon felt the setbacks were not conformed to.
• Mr. O'Day said 10' setback is required for a shed that size.
• Mr. Rutledge said the shed was away from the Villandry's house to make it less offensive to the
neighbors. He should be allowed some control over his property.
• Mr. Stewart notes there is construction debris stored near the shed.
• Mr. Rutledge said they have been removes, just a canoe there now.
Open to Public Input
Diane Villandry (abutter) said that the tree stipulated, after the storm, was not on the ground.
Three weeks later they were down and the wood stacked. The land is wide open. Shed was built in
the back of the lot.
Mr. Rutledge stated the trees cut had fallen down.
Motion by Mr. Harrison to Close to Public Input. Second by Mr. Stewart. VOTE 5-0-0.
Discussion
• Mr. Harrison felt the problem putting the shed in the green zone was blatant disregard- not in
support.
• Mr. Stewart is not in support-trees should be planted as requested and the shed removed.
• Ms. McInerney feels the applicant did not take this seriously, the applicant is not cooperating.
• Mr. Nixon feels the applicant is trying to pull something over on the town. He does not wish to
overturn the Special Permit and the shed should be removed.
• Mr. Freeman is in full support of the Board. The shed should be removed and it is clearly stipulated
the back area to remain in a green state.
Motion made by Mr. Stewart to DENY the request of the applicant to modify existing Special
Permit conditions of previously granted Special Permit 02-51 under Brewster Zoning Bylaw, Art. VIII,
Sec. 179-25 B. Require the Building Inspector to have the shed removed. All other materials removed
from the vegetative area (90') green space as stipulated previously. Second by Mr. Nixon. VOTE 5-0-0.
ZBA minutes 8-8-06
Page 7 of 7
06-24 Ron MacGillivray, 140A Millstone Road, Map 28 Lot 14-11. The applicant seeks a Special
Permit under MGL 40A, Section 9 and Brewster Bylaw 179-25-B to construct an 8 x 12 shed and a 12 x
16 deck to a cottage. The dwelling is a nonconforming pre-existing structure.
Members hearing these cases were Messrs. Freeman, Harrison, Stewart, Nixon and Ms. Flaherty.
Mr. MacGillivary would like to place a (8 x 12) shed to the rear of the structure for storage only. He
would also like to add a 12 x 16 foot deck off the back of the unit.
Board Discussion
• Mr. Stewart asked if the immediate abutters were supportive/
• Mr. Freeman said HDC had approved this already.
• Mr. MacGillivray said there would be no electricity or plumbing in the shed. Solar light only.
• Mr. Nixon asked what the condo bylaw is for decks and sheds?
• Mr. MacGillivray said that has not come up before. This is just storage for bikes and beach chairs to
the rear of the development.
• Mr. Stewart noted #9 has a rear deck-platform.
• Mr. MacGillivray said no defined parking spaces are done yet.
• Ms. Flaherty asked how far the deck would be to #10?
• Mr. MacGillivray said 3-4 feet.
• Mr. Harrison noted his concern that we would get 12 requests for this.
• Ms Flaherty said is a great idea, everyone needs storage, could it be done as an association not
individual condo.
• Mr. Freeman feels this will increase.
• Ms. Flaherty asked if the condo agreement governs this?
• Mr. MacGillivray stated this is not permanent in nature just storage.
• Mr. Harrison suggest one shed with a wall and 2 entrances- to use less space
• Mr. Freeman suggests possibly where the "old garage" is currently-concrete slab already there.
Possibly a 4-unit building.
• Mr. Harrison feels it should be continued.
• Mr. Freeman feels the common storage should be considered but what constitutes the condo
agreement? We should know what the document is before making a decision.
• Mr. Stewart feels this is a test case.
• Ms. Flaherty feels that this is regulated by the condo agreement.
• Mr. Freeman suggests a continuance until October meeting to find this information.
Motion by Mr. Harrison to CONTINUE the hearing to seek a Special Permit under MGL 40A, Section 9
and Brewster Bylaw 179-25-B to construct an 8 x 12 shed and a 12 x 16 deck to a cottage until October
10, 2006. Second by Ms. Flaherty. VOTE 5-0-0.
Motion to adjourn the meeting made by Mr. Harrison, Second by Ms. Flaherty. VOTE 7-0-0.
Respectfully,
Marilyn Mooers/Clerk
ZBA minutes 8-8-06