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HomeMy Public PortalAboutZoning Board of Appeals -- 2006-10-10 Minutes 1 Page 1 of 5 BRE~~r~~> ~,~ ~~.R ~ ~--~,t Date Approved 1i-16-16 Vote 5-0-0 '06 NOV 20 A, ~ ~39 TOWN OF BREWSTER ZONING BOARD OF APPEALS October 10, 2006 Meeting Minutes Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were; Paul Kearney, Harvey Freeman, John Nixon, Brian Harrison, Arthur Stewart, Bruce MacGregor, Neva Flaherty and Philip Jackson. Member absent: Suzanne McInerney. OLD BUSINESS • Minutes of September 12, 2006 accepted as written. Motion made by Paul Kearney. Second by Arthur Stewart. VOTE 8-0-0. • Minutes of September 14, 2006 accepted as written. Motion made by Paul Kearney. Second By John Nixon. VOTE 7-0-1 • 06-23 Brewster Orleans Properties, Route 6A and Vesper Pond Drive, Map 30 Lot 006. CONTINUANCE REQUEST Applicant seeks an Appeal of the Zoning Agents Decision under MGL 40A, Sections 8 and 15 and Brewster Zoning Bylaw 179, Sections 11 and 15, Tables 1 and 2 to develop single family dwellings on individual parcels. Motion by Arthur Stewart to Continue until December 12, 2006. Second by Neva Flaherty. VOTE 8-0-0. • CHANGE OF MEETING DATE-November 14 to 16th. Quorum will be in attendance. • REVIEW CALENDER FOR 2007. Due to Town Meeting Schedule, 2 dates were changed on the 2007 calendar. Reviewed and approved. NEW BUSINESS 06-32 Margaret L. Schilke, 29 Cranview Road, Map 38 Lot 71-1. The applicant seeks a Special Permit under MGL 40A, Section 9 and Brewster Bylaw 179, sections 11 and 16, Tables 1 and 2, Note 14 to allow an accessory apartment for use by a health care professional providing service to the family. Members hearing this case were Messrs. MacGregor, Nixon, Harrison, Jackson and Ms. Flaherty. Attorney Steven Jones represented Mrs. Schilke. He was asked to give a brief overview. Mrs. Schilke would like to construct an accessory apartment for a Health Care provider. There will be no new construction, just re-using the area. The apartment will be in compliance with maximum area. BOARD QUESTIONS • Mr. Jackson asked if the applicant was aware of the restrictions and stipulations if no longer in use. • Mr. Jones stated this unit will be 598 square feet, on the second floor of the attached garage. Dedicated to accessory apartment. • Mr. Nixon asked if the area was being used currently. • Mr. Jones said NO, it is just open, not finished. • Ms. Flaherty asked to explain the 2 stairways. • Mr. Jones said that it was a code issue with existing stairway, requiring a 2"d stairway. • Mr. MacGregor asked if the issue was with the width or need for 2 egress. • Mr. Jones said that it was with the stairs themselves. ZBA minutes 10-10-06 Page2of5 Open to Public Input • Mrs. Schilke said that the reason she needed a provider was her health issue (MS). The home was built with a first floor master but since her husband passed away and there is no family nearby to help, a provider is needed. The first set of stairs don't meet code for headroom. Motion made by Brian Harrison to Close to Public Input. Second by John Nixon. VOTE 5-0-0. Board all supportive Motion made by Mr. Brian Harrison to GRANT a Special Permit under MGL 40A, Section 9 and Brewster Bylaw 179, sections it and 16, Tables 1 and 2, Note 14 to allow an accessory apartment for use by a health care professional providing service to the family. Second by Mr. John Nixon. VOTE 5- 0-0. 06-24 Ron MacGillivray, 140A Millstone Road, Map 28 Lot 14-111. CONTINUANCE 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 this case were Messrs. Freeman, Nixon, Harrison, Stewart and Ms. Flaherty. Mr. MacGillivray was asked to give a brief review of his request. He would like to add a shed and deck to the back of his condominium unit. After talking to the Building inspector he decided on a free standing structure. He was advised that under 197-256 it would be'~not substantially detrimental". He has presented a list of support from his neighbors as well a copy of the Master Deed for the Condo units. This document was presented at this meeting (not previously reviewed by the Board). BOARD QUESTIONS • Mr. Freeman asked Mr. MacGillivray to walk the Board through the section applicable to his request as they had not time for review. • Mr. MacGillivray said that Article IX is the area to be applied. • Mr. Freeman noted that Article VI -Appurtenant Rights might apply as extension into easement around structure. • Mr. MacGillivray stated that at the annual meeting everyone signed-off on his application. • Mr. Stewart stated that he was building in a common element-beyond 2' easement. • Mr. MacGillivray said he knew he was past the 2 foot limit. • Mr. Nixon said that he felt the request was the same as last time. This permit would lead to other unit owners doing the same thing. The Board had asked him to look into a community building or 2-3 unit owners working together. • Mr. MacGillivray said that he does not see it happening. One unit for several to use is not an option at this point. • Ms. Flaherty noted that Article IX -Alterations and Improvements- in her interpretation (such as adding a swimming pool) is an agreement of others and cost not by individual owners to make changes to common element. Ms. Flaherty does not feel it is applicable to what he is doing. If the Condo builds a storage shed but not individual. • Mr. MacGillivray said the he has unanimous approval. • Ms. Flaherty asked how many units in the colony. • Mr. MacGillivray said there are 12 units. • Ms. Flaherty noted that everyone will want to add a storage shed and adeck- this should be addressed by all units together. ZBA minutes 10-10-06 Page3of5 • Mr. MacGillivray said that there is a lack of storage space for all. He asked the Building Inspectors guidance as to how to proceed and this is the course of action suggested. • Ms. Flaherty said that if any unit encroaches in common area everyone has the right to the common area. • Mr. Stewart said that we could be rewriting this Condo document without our knowledge. He is worried about the future requests of "in common element". They should think about doing something as an association. • Mr. MacGillivray said that Victor Staley guided him as how to go about this. Open to Public Input No one spoke to this issue. Motion made by John Nixon to Close to Public Input. Second by Brian Harrison. VOTE 5-0-0. FURTHER DISCUSSION • Mr. Freeman stated that looking through the Zoning perspective of pre-existing non- conforming structure criteria 25B is to be considered- substantially detrimental to neighborhood. • Ms. Flaherty asked is the Condo agreement not relevant. • Mr. Harrison said not to us. • Mr. Freeman said that the Condo documents guide us but we can not be too deeply involved. • Mr. Stewart said we deal with zoning regulation only. • Ms. Flaherty said that the problem is because that we are doing is altering a legal document that protects each owner. • Mr. Stewart agrees with Ms. Flaherty- this should be an Association decision. • Ms. Flaherty said that the Association could add a provision for all concerns about altering a legal agreement. • Mr. Freeman said that when we granted the original Special Permit (05-17) to establish this condo the ZBA felt we would not include extensive renovation. • Mr. Nixon noted that this unit is 315 square feet with the shed it adds 30%. What is the probability of all units requesting the same? Purchasers were aware of the size when originally bought. We must save cottage colonies that a particular to the Cape. This addition would be hodge podge. Keep the nature the same. • Mr. Harrison said that he could live with the deck but he feels there should be common storage for every 2-3 buildings. • Mr. Stewart is not in favor of this application, he understands the need but feels it is an association problem or they will have 12 individual add-ons. • Mr. MacGillivray said that it appears the will of the Board is against this project. • Mr. Harrison told Mr. MacGillivray that he can withdraw without prejudice and return at a later date, but if the Board votes to deny he cannot return for 2 years. • Mr. Freeman noted the proposal before the applicant is to reconsider and return if he chooses to withdraw without prejudice. Motion made by Arthur Stewart to DENY the request for 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 as discussed in the previous minutes. Second by Brian Harrison. VOTE 5-0-0. 06-31 Kenneth W. Thomas ]r., 31 Fair Oak Drive, Map 32 lot 3-39. The applicant seeks a Appeal of the decision of the Zoning Agent and/or Dimensional Variance under MGL 40A, Section 8 and 15 and Brewster Bylaw 179-16, Table 2, Note 7 regarding the excessive height of a detached accessory structure. ZBA minutes 10-10-06 Page 4 of 5 Members hearing this case were Messrs. MacGregor, Nixon, Harrison, Kearney and Freeman. Mr. Thomas was represented by Attorney Steven Jones. Mr. Thomas was present at the hearing. Mr. Jones gave a brief overview of the application. In 1995 a building permit was applied for and granted for an office above a detached garage. This was issued with plans. The structure was 29 feet high by the plans but was approved. When Mr. Thomas requested the final inspection, the issue with the height was brought to his attention. According to 40A-7 it was built to original plans and everything was in compliance. The Zoning Agent now says it must come to ZBA to first overturn the agent's decision, built in compliance and more than 6 years of issued permit. Or at the outside- more than 10 years meet statute of limitations, even though in violation of footnote 7. Board Discussion • Mr. Harrison noted that use is not a question • Mr. Jones said that use is permitted only the height is in question. • Mr. Nixon noted that the plans are not dated. • Mr. Jones said that the dates flow through the inspection period. • Mr. MacGregor asked if the permit was signed by the Building Inspector • Mr. Jones said YES. • Mr. Freeman stated that the plans do not indicate height. • Mr. Jones said no, they must be scaled. • Mr. Harrison noted that whatever happened was past the require timeframe. • Mr. Freeman said that the rough inspection was in 1996- what is the note about an apartment. • Mr. Jones said it was made because of the request for a bathroom. • Mr. Thomas sated that there is a kitchen but David Thyng had said there was never to be a stove in the unit. Not a rental. • Mr. Freeman asked what was the history of this building. • Mr. Thomas said his in-laws have stayed there; there is a bed but no means of cooking. • Mr. Freeman asked if plumbing was installed. • Mr. Jones. stated that plumbing was not on the original plan, but added as construction continued. • Mr. Freeman asked when this was added. • Mr. Jones said in April 1996. • Mr. Kearney noted that the document of 1995 as a simple garage. • Mr. Thomas said that they received the rough inspection on electrical and plumbing but not final. • Mr. Jones said that is not relevant, the violation is the height. • Mr. Kearney noted that he does not see the paper trail. • Mr. Jones said that is not a zoning issue. • Mr. Kearney said that the Zoning Agent missed the height, 10 years has lapsed. • Mr. Jones said that is not the Boards prerogative to meet the building code. • Mr. Freeman asked what was the habitable space over the garage. • Mr. Thomas said there is no means of cooking. • Mr. Jones said they deal with height violation only. • Mr. MacGregor said that every time Mr. Thyng came before the ZBA with an accessory apartment he specified the stove to be removed if no longer used as an in-law apt. • Mr. Harrison said that the issue is height. We can grant relief of the statute of limitations not condoning how the space is to be used other than an office. • Mr. Nixon said that he agrees with Mr. Harrison. This is a sketchy permit but not our affair. • Mr. MacGregor asked if the building was built to plans, more than 25 feet. • Mr. Jones said YES it was 29 feet. ZBA minutes 10-10-06 Page 5 of 5 • Mr. Freeman said that he agrees the statute of limitations applies for height. The space above is being used unofficially with a kitchen in place. Plumbing for sink infers a kitchen. The use is not grandfathered, under Lord vs. Somerset in 1991. • Mr. Jones said that he agrees with the premise. • Mr. Freeman said that height is the issue, the other is muddy. Open to Public Input • Gerry LaRue, 637 Millstone Road, stated that the structure is pleasant to look at. He has no problem with the height. It had never been rented Motion made by Brian Harrison to Close to Public Input. Second by Bruce MacGregror. VOTE 5-0-0. Motion made by Brian Harrison that the structure meets the criteria of 10 year statute of limitation with no effect on use. Stipulation of the Zoning Bylaw is outside the permit. Second by Bruce MacGregor. VOTE 5-0-0. Motion to withdraw variance application made by Brian Harrison. Second by John Nixon. VOTE 5-0-0. 8:45 Pm Motion made by Arthur Stewart to adjourn. Second by John Nixon VOTE 8-0-0 Respectfully Submitted, Marilyn M ZBA minutes 10-10-06