HomeMy Public PortalAboutZoning Board of Appeals -- 2006-12-12 MinutesDate approved 2-13-07
Vote 6-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
December 12, 2006
Chairman Harvey freeman called the meeting to order at 7;00 PM. Members present were;
Harvey Freeman, Philip Jackson, Arthur Stewart, Paul Kearney, Brian Harrison, Bruce MacGregor,
John Nixon, Neva Flaherty and Suzanne McInerney.
OLD BUSINESS
• Minutes of November 16, 2006
Minutes reviewed. Motion made by Mr. Stewart to ACCEPT minutes as written. Second
by Mr. Nixon. VOTE: 8-0-0.
• Ms. McInerney requested when the Bylaw is reprinted an index be included. This has
been done in the past and Marilyn will look into it for the next re-print.
• Mr. Freeman discussed that a 406 application for Rt. 39 will be filed the first week in
January. The ZBA has 30 days to open the hearing; January 30, 2007 has been
requested. All members will be available and may attend the hearing.
NEW BUSINESS
06-23 Brewster Orleans Properties, Route 6A and Vesper Pond Drive, Map 30 Lot 006.
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.
Members hearing this case were Messrs. Jackson, Nixon, Harrison, Stewart and Freeman.
Mr. Freeman introduced this application with Attorney Myer Singer representing Brewster Orleans
Properties. The two principals were present; Mr. Bill Vonthadem and Bob Chiarello.
Mr. Singer gave an overview. Mr. Singer has some materials to present; sections of the Bylaw,
study, and expansion on original letter sent with packet.
Mr. Singer said that the first sheet was a plan of the land, located on Rt. 6A at the
Brewster/Orleans line. The intent of this application is to place a single family house on each lot.
Total site divided into 8 lots. As the matter was proceeding Mr. Staley determined these lots
could only be used for commercial use as they are less than 60000 square feet. Under the zoning
Bylaw this is VB district and single family home are allowed in VB district. In VB there is a
minimum lot size and that is 15000. This seems a relatively simple issue, you can have lots of
15000 square feet, you can have single family homes therefore you can have a house on
each of these lots. There is another section of the Bylaw, Mr. Staley makes reference to, 179-
136, which says you can not have residential use upon a lot unless at least 60000. Obviously in
VB district and other commercial district you do not need 60000 square feet, thus there is an
inherent conflict in the Bylaw. The Planning Board discussed making a change in the Bylaw.
Town Counsel opinion said there was an inherent conflict in the Bylaw and the way to address
the problem was to amend the Bylaw to clarify these 2 sections. The Planning Board was going
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to propose a Bylaw change; they had further meetings and determined they were going to
withdraw this article for further discussion. We are now left with the ZBA to determine this. The
Planning Board did mention the survey the town had taken in the past as to what the town
wanted in terms of residential and commercial use. (copy provided). What is important are some
of the items on the first page, what the townspeople want for Brewster.
Not a new survey but the Planning Board still makes reference to this document.
Clear residential use, not commercial use, is preferred anywhere in the town.
Mr. Singer continued; how do you resolve a conflict in the Bylaw? Clearly there is one. You have
to go to the rules of "statutory construction".
1. Section 15, states regulations of each district in outlined in Table 2.
2. The towns previous application of Section 13B is under the law, given great weight,
interpreted over the years.
Town of Brewster has issued permits for residential use in commercial zone for under
60,000. square feet. Victor Staley was not the Zoning Agent at that time. Residential
use is an accessory use in CH zone, therefore appropriate to issue permit in CH zone.
3. Order in which the Bylaw is adopted. VB was adopted in 1988-minimum lot size in bylaw
prior to 1988. Illogical and inconsistent. If 2 statutes conflict; the late statute governs.
4. Statutory language that is general has to yield to more specific. VB is more specific.
More specific adopted second after more general.
There is a real inherent conflict in Bylaw. Table 2, Note 1 says"2 single family units ......."
Ambiguity not intended by the town in 1988. The Zoning Agent is not correct, what he is reading
more restrictive, he is reading this into the Bylaw....it is not there.
We would like the Zoning Board to overturn the Zoning Agents decision and approve residential
homes on these lots.
BOARD DISCUSSION
• Mr. Stewart stated the stricter (179-8) applies. Which imposes a greater restriction shall
govern, that is how I read this.
• Mr. Singer responded that it does not apply to the more strict in Table standard
• Mr. Stewart says Town Counsel does not agree with you.
• Mr. Singer noted that Town Counsel had 2 letters in conflict.
• Mr. Freeman asked Mr. Henchy (Planning Board Chairman) if he was aware of 2 letters.
• Mr. Henchy said YES, both letters were in conflict, thus Planning Board could not agree
so they decided to leave it alone, thus removing the change in Bylaw from the Town
Warrant.
• Mr. Freeman spoke in reference to 2 letters and the perception of the difference in the
two.
• Mr. Henchy noted letter 2 said a section of minimum size cancelled 15,000 option and
Letter 1 said there was a conflict in the Bylaw.
• Mr. Nixon said that in Table 2,VB allows any other permitted structure. How do you
interpret that?
• Mr. Singer said that perhaps "other" should be removed as no "other" is listed.
• Mr. Stewart asked if this lot was sub-divided this year what is the intention.
• Mr. Singer said to have houses, prove to the Planning Board the lots have necessary area
and street frontage, use not discussed. Under VB district "P" means permitted.
Open to Public Input
• Victor Staley (Zoning Agent) said this is a very complicated issue. There is a conflict in
the Bylaw. My determination is black and white; VB district does allow single family
homes, lots can be 15,000 square-feet but according to 13B, overlay would rule. It does
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not override cluster zoning. 60,000 rule in effect for single family dwelling considered
pre-existing.
• Bill Henchy said the Planning Board was split down the middle. The Zoning Board has
to make a decision.
• Mr. Freeman asked Mr. Singer about amendments over the years-when was minimum lot
size (VB) enacted.
• Mr. Singer noted; October 17, 1988-Article 26 and Article 27 gave 400' of Route 6A at
Orleans Line the VB designation.
• Mr. Staley said that in 1960 the minimum size lot was 15,000. square feet.
• Mr. Singer said that in May of 1987 there was a change in 179-136 making 60000 square
feet in any district. Last one counts.
Continue Public Input
• Peter Sole asked to see a copy of the plan.
• Richard Denim stated the only fault is the lots are too small. He asked what the side
setback is on that size lot.
• Victor Staley said that if 15,000 is determined, other setbacks would be 15'.
• Richard Denim stated that in early 1970 there were only 2 lots on the plan.
• Mr. Singer sated he did not know of that plan.
• Peter Sole added that to convert to residential lots it looks like a lot of curb cuts onto 6A-
it might be better to have one access within a cluster concept. Safety is an issue-it is a
fairly dangerous intersection off Vesper Road now.
• Mr. Harrison said we have no authority on that issue-just lot size.
• ]eff Eyestone (Vesper Pond Road) disagrees with this concept; wetlands are on and
around this whole area.
• 7eff Smith (Handcraft House) noted that if this appeal is permitted, what would prevent
other VB areas from building homes on 15,000 square foot lots.
• Mr. Freeman noted he had no answer to a question like that.
• Mr. Staley said that whatever decision is made in this VB district would affect all.
• Mr. Harrison said it is specific to the Bylaw.
• Mr. Stewart asked Mr. Staley for his interpretation of Section 8.
• Mr. Staley said it is restrictive language, most conservative interpretation.
• Mr. Singer said that the question tonight is residential use or not. Use could be eight
businesses onto 6A. Meeting with the Planning Board they suggested a common
driveway or proposed one for each 3 lots. If this is accepted, one zoning district not
town wide.
• Mr. Denim asked if this is approved does it trigger Cape Cod Commission or HDC?
• Mr. Staley said YES for HDC and NO for CCCommission.
• Mr. Singer asked if it is the practice of the ZBA to discuss this further and make decision
later because applicant has no problem with a continuance.
• Mr. Freeman said they usually decide at meeting unless further information is needed.
Motion made by Brian Harrison to Close to Public Input. Second by Arthur Stewart. VOTE 5-0-0.
Mr. Jackson feels the more restrictive governs. According to Town Counsel letter lots
must be 60,000 square feet.
Mr. Harrison said that the name of the district is telling. 15,000 square feet is primary
for business use. Overlay is 60,000. Highest standard would apply. He is supportive of
the Zoning Agents decision.
Mr. Stewart agrees with Mr. Harrison and Jackson that the more conservative rules.
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Mr. Nixon agrees with all. 179-8 not meant for this particular situation. He agrees to
uphold Zoning Agent.
Mr. Freeman feels it is a unanimous decision to uphold.
Motion made by Mr. Harrison to UPHOLD the Decision of the Zoning Agent 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. Second by Mr. Nixon. VOTE 5-0-0.
Mr. Jackson AYE
Mr. Harrison AYE
Mr. Stewart AYE
Mr. Nixon AYE
Mr. Freeman AYE
CONTINUANCE 06-36 Vere E. Murphy, 53 Winslow Landing Road, Map 14 Lot 36-3.
The applicant seeks a Special Permit under MGL 40A and Brewster Bylaw 179-16, Table 2, Note
14 to construct an in-law apartment for a family member.
Members hearing this case were Messrs. Jackson, Nixon, Harrison, Stewart and Ms. McInerney.
Mr. John O'Connor, Builder, represented the applicant. Mr. O'Connor discussed the new plans
that had been presented. This did not include a common (shared) bathroom. There will be a
total of 445 square feet within the confinement of garage footprint.
BOARD DISCUSSION
• Ms. McInerney asked if this was a small bedroom.
• Mr. O'Connor said YES
• Ms. McInerney asker if there will be full walls?
• Mr. O'Connor again said YES.
• Mr. Jackson asked if there are any Conservation issues.
• Mr. O'Connor said NO.
• Mr. Freeman noted that any exterior changes must receive HDC approval.
• Mr. Staley said this is a space within a space and they are not disturbing the ground.
Open to Public Input
• No one spoke to this application
Motion made by Arthur Stewart to Close to Public Input. Second by Brian Harrison. VOTE 5-0-0.
FURTHER DISCUSSION
Mr. Stewart noted Mr. O'Conner presented new plans as asked, he sees no problem with
this application.
Ms. McInerney said everything was done as asked. Reminder that this is for family
member with no rental.
Motion made by Philip Jackson to GRANT a Special Permit under MGL 40A and Brewster Bylaw
179-16, Table 2, Note 14 to construct an in-law apartment for a family member as per Brewster
rules and regulations. Second by John Nixon. VOTE 5-0-0.
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06-34 ]ames McGinnis, Kathy McGinnis, Todd Hoyt, 2750 Main Street, Map 14 Lot 61-
1. Applicant seeks an Appeal of the Zoning Agents Decision under MGL 40A, Section 8 and
Brewster Bylaw 179-51 to authorize a restaurant retail use and outdoor seating.
Members hearing this case were Messrs. Freeman, Harrison, Stewart, Nixon and Kearney.
Attorney Duane Landreth represented the applicant. Ms .Kathy McGinnis and Mr. Todd Hoyt
were present at the meeting.
Mr. Landreth was asked to give a brief overview of the application.
This is an appeal of the Zoning Agents opinion of August 23, 2006. Building plans have been
submitted. The site is at 2750 Main Street, with 200 feet of frontage fora 40,000 square foot lot
on Route 6A near the Cape Cod Rail Trail.
• Originally they were located at Foster Square -with picnic tables.
• They wanted to enlarge and own the property rather than lease.
• They have been to Planning Board for Corridor Overlay
• Have been to DPRC to receive guidance- this is the first time "restaurant use" was
noted.
• From June 21 to October 21 they met with Planning Board to discuss first floor plan, 2nd
floor office and exterior covered area.
• Planning Board classified it as a restaurant/retail use not take-out.
• Required traffic study- sent to Cape Cod Commission for evaluation
• Presented as a full service, sit down restaurant (page 7)
• Hours of operation (page 6)
• No inside seating proposed, therefore not permitted (pages 12+13)
• Covered deck-seasonal seating
• Pathway to rail trail
• Many businesses sprout table on a seasonal basis.
• Upfront and planning cost substantial
• Planning Board voted in favor -drafted decision from minutes of Planning Board
meeting.
• Planning Board has taken the position against outdoor seating
• Zoning Agent stopped occupancy permit.
• New Bylaw "Limited Services Restaurant"
• Asking ZBA to overturn decision of Zoning Agent.
BOARD DISCUSSION
• Mr. Stewart asked if outside seating had been discussed with Planning Board.
• Mr. Landreth said NO, the application was filed as Corridor Overlay. They felt this was
an allowed use, similar to their previous restaurant.
• Ms. McGinnis said they were asked over the course of many meeting what happens in
their business? They replied take home and cook or eat there.
• Mr. Freeman asked what was the intent of the new restaurant?
• Ms. McGinnis said exactly the same as prior- retail fish market and sell sandwiches. No
one ever asked if people are going to sit and eat.
• Mr. Freeman said the permit issued says outdoor seating is permitted.
• Ms. McGinnis said their bread and butter is clambake. but people do wish to sit with a
sandwich.
• Mr. Nixon asked if Planning Board placed conditions on application
• Mr. Landreth said YES, conditions of Planning Board and also applied to Corridor Overlay.
Combined in one hearing.
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• Mr. Nixon said the only place outdoor seating is mentioned is a Special Permit from
Planning Board.
Mr. Landreth noted the use allowance is where it should be.
• Mr. Harrison asked if the bathrooms are open to the public.
• Ms. McGinnis said 2 are accessible from the deck.
Open to Public Input
• William Henchy (Chairman of Planning Board) paraphrased from his response letter;
retail and restaurant was a discussion. Nothing in Table of Uses to allow this. Parking
design is for 68 seats. He feels the only approach to this is to apply to Planning Board
for a modification.
• Victor Staley (Zoning Agent) stated retail does not fit the definition and parking
calculations provided are accurate (they did not include covered areas).
• Mr. Freeman said the decision of the Planning Board has very specific areas; to clarify
how to interpret restaurant is different from "retail restaurant" (pages 7, 11, 13 #5, 13,
14 and 22). It is stated a restaurant has seating provided.
• Mr. Staley erred under term of restaurant; should have come to ZBA to change Bylaw.
Cannot issue this from Planning Board.
• Mr. Harrison said the decision on the comment to allow takeout station. Originally across
the street with menu not retail store. Authorized as a restaurant without seats but
takeout. No consumption of food on the premises. Outside waiting area only not eating.
That is why they didn't object to the parking calculations. No provisions for bathrooms.
Suddenly there is a huge space on the porch and patio; would change parking
calculations. Applicant can come back and expand parking lot then consider under a
modification of Special permit.
• Mr. Freeman said if food is prepared and served- Restaurant definition; at dining tables.
• Mr. Stewart noted if outdoor seating is allowed, people from the bike trail would want to
eat there rather than take and eat on the go.
• Mr. Harrison said back to the definition of restaurant-talks about serving at dining tables
(in or out). Keep using the word restaurant-allowed in VB district.
• Mr. Landreth said that 179-67 of Corridor Overlay allows the power to relax parking
standards.
• Mr. Staley said that application is for retail not restaurant.
• Mr. Landreth has issue with the thought of being accommodated; initial use of tables.
They do not want to go back to the Planning Board to seek a modification.
Motion made by Mr. Harrison to Close to Public Input. Second by Mr. Stewart. VOTE 5-0-0.
BOARD THOUGHTS
• MR. Nixon feels he only thing being asked is outdoor seating. Special Permit by the
Planning Board said outdoor seating is allowed. Eating is not for us to determine.
• Mr. Stewart said the letter from Victor Staley on 8-14-06 spoke of outdoor seating NOT
for the consumption of food. He is leaning toward Victor's interpretation.
• Mr. Kearney he feels they moved from one location to another.
• Mr. Harrison said they came as a retail use. Planning Board has no right to issue a
Special Permit with definition. "Not to consume food" is not practical to enforce.
• Mr. Freeman said the wording of restaurant/retail means sit down and eat. Restaurant
permitted specifically not inside but outside. Words of decision are black and white.
Other issues involving parking, bathrooms etc involve Board of Health and Zoning Agent.
He feels we are hurting a commercial enterprise. It is a good addition to the town.
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• Mr. Stewart feels it should be sent back to Planning Board for clarification, needs to be
re-written.
Motion made by Brian Harrison to OVERTURN ZONING AGENT decision as to outdoor seating
ONLY as it related to Corridor Overlay Decision of Planning Board (refer to Victor Staley letter of
8-14-06 item a). Second by Mr. Kearney. VOTE 4-1-0.
Harrison YES
Kearney YES
Freeman YES
Nixon YES
Stewart NO
06-39 Kurt R. + Beverly O. Wicks, 63 Charles Street, Map 5 Lot 57. The applicant seeks
a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25B to alter and extend a pre-
existing, non-conforming structure on a lot lacking recognizable street frontage.
Members hearing this case were Messrs.Jackson, Harrison, Macgregor and Ms. Flaherty and
McInerney.
Attorney George Cavanough represented the applicant. Mr. Kurt Wicks was present at the
hearing. Mr. Colby from Sisson Homes was also in attendance.
Mr. Cavanough gave a brief overview. The Wicks have a large family. This is an older home and
they want to demolish existing building and rebuild on the same site. This would add a new
septic system. They need recognizable street frontage to do this.
BOARD DISCUSSION
• Mr. Harrison asked how this compares to the original in size.
• Mr. Wicks said the old house is 1800 square feet the new 2350 (2 floors).
• Mr. Jackson asked if there are 5 bedrooms.
• Mr. Wicks said 5 small; 2 on first floor and 3 on 2"d floor.
• Mr. Jackson asked about the neighbors comments.
• Mr. Wicks said it is upgrading the neighborhood.
Open to Public Input
• No one spoke to this application
Motion by Neva Flaherty to Close to Public Input. Second by Brian Harrison. VOTE 5-0-0.
THOUGHTS
• Mr. Harrison feels it is a single family home into a single family home, if they had
frontage for the original, it is OK for this.
• Mr. Jackson said it meets setbacks and he feels it is no increase in non-conformity.
• Ms. McInerney feels that an increase in height increases volume thus she cannot support
this.
Motion made by Philip Jackson to GRANT Special Permit under MGL 40A-9 and Brewster Bylaw
179-256 to alter and extend apre-existing, non-conforming structure on a lot lacking
recognizable street frontage. Referring to plans indicated as DWG 04247SPL 04-247. Second by
Neva Flaherty. VOTE 4-1-0.
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Jackson YES
Flaherty YES
Harrison YES
MacGregor YES
McInerney NO
06-40 ]oseph Carty and Diana Pohly-Carty, 42 Konohasset Cartway, Map 41 Lot 11-
0. The applicant seeks a Special Permit and/or a Variance under MGL 40A and Brewster Bylaw
179-256, Table 2, Notes 5 and 7, 179-6D and/or 179-52 to rebuild an existing nonconforming
boathouse/shed in a location further from Long Pond, but within a vegetated wetlands flood
hazard zone.
Members hearing this case were Messrs. Macgregor, Kearney, Freeman and Ms. Flaherty and
McInerney.
Attorney Duane Landreth represented the applicant. Bothe Mr. and Mrs. Carty were present as
well as David McNevich from Coastal Engineering.
Mr. Landreth gave brief overview of this project. Special Permit is requested to reconstruct and
relocate existing shed from vegetated wetlands. It would be closer to the bog but further from
the pond. The lot was created in 1928 with 20 foot sideline setbacks. Conservation Commission
recommended the new location. In November, 2005 they were granted a Special Permit to move
the house away from the pond (now under construction). The lot is irregular in shape with 280
foot frontage. When they went to repair the shed, it was infested with carpenter ants so they
would like to rebuild in place. The Conservation Commission required it be moved. This is a pre-
existing non conforming move to a new location.
BOARD DISCUSSION
• Ms. Flaherty asked what else the shed is used for.
• Mr. Carty said for all gear for boats, windsurfers and gardening.
• Mr. Freeman asked if the boat was winterized off site.
• Mr. Carty said YES, Nauset Marie does that at their facility.
• Ms. McInerney indicated there was a large hole there and there has been a lot going on
at the property.
• Mr. Landreth stated the house has been demolished, a large garage is there. They have
been before the Board 3 times for various permits that nave all been approved.
• Ms. McInerney asked if the pitch of the shed matching the pitch of the house was for
aesthetic purpose.
• Mr. Landreth said it is for the height of the masts and is in between the house and the
garage as well as aesthetic reasons. All plans have met with Cons Com approval for the
100 year flood plan.
• Mr. McNevich said the shed is not within the flood zone.
Open to Public Input
• No one spoke to this application
Motion by Neva Flaherty to Close to Public Input. Second by Paul Kearney. VOTE 5-0-0.
BOARD THOUGHTS
• Mr. Kearney had no problem with this project.
• Ms. Flaherty agrees.
• Ms. McInerney feels they have responsibility to the wetlands.
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• Ms. Flaherty asked if they really need another structure, perhaps enlarge the garage but
because of the wetlands it is still bumping the borders. It is further away from the edge
of the pond.
• Ms. McInerney thought it is the owner's responsibility, near the wetlands, to be careful
what they ask for.
• Ms. Flaherty would like to condition the decision; no chemicals for boat or yard in this
shed.
• Mr. MacGregor is satisfied.
Motion made by Suzanne McInerney to GRANT a Special Permit under MGL 40A and Brewster
Bylaw 179-256, Table 2, Notes 5 and 7, 179-6D and/or 179-52 to rebuild an existing
nonconforming boathouse/shed in a location further from Long Pond, but within a vegetated
wetlands flood hazard zone with the condition that no chemicals for boat or lawn be stored in the
shed. Using plans SD-1 by Coastal Engineering dated 10-04-06. Second by Neva Flaherty. VOTE
5-0-0,
Motion made by Paul Kearney to withdraw without prejudice the Variance previously applied for.
Second by Neva Flaherty. VOTE 5-0-0.
10:40 PM Motion to adjourn made by Mr. Nixon. Second by Ms. Flaherty. VOTE 7-0-0.
ly submitted,
Marilyn Moq~~, Clerk
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ZBA Minutes 12-12-06