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HomeMy Public PortalAboutZoning Board of Appeals -- 2006-12-14 MinutesDate approved 2-13-07 Vote 6-0-0 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes December 14, 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, and Suzanne McInerney. Member absent was Neva Flaherty. NEW BUSINESS 06-44 Brewster Fish House RT, Vernon 7. Smith, 2204 Main Street, Map 16 Lot 77. The applicant seeks a Special Permit and/or Variance under MGL 40A-9and Brewster Bylaw 179-25 (B) and /or 179-52 to alter pre-existing nonconforming Fish Market use to nonconforming Restaurant use and to extend seasonal to year-round use. Members hearing this case were Messrs. Jackson, Nixon, Harrison, MacGregor and Freeman. Attorney Ben Zehnder represented the applicant. Mr. Vernon Smith was present at the hearing. Mr. Zehnder gave a brief overview. A Special Permit was issued previously for upgrades and remodeling. BOARD QUESTIONS • Mr. Jackson asked if the Special Permit included from seasonal to year round. • Mr. Zehnder said YES, they wish to apply for year round permit. The approval gives back to the town for the locals to use in the off season. Not more detrimental. • Mr. MacGregor noted that when they first started, it was considered legal. • Mr. Zehnder stated the building was built in 1960; it was occupied by a Fish market with tables about 1983 however there is no hard evidence to support this. • Mr. Freeman made reference to the sketch of 1983 indicating dining area, freezer and existing bathrooms. • Mr. Zehnder presented a Heath Dept. permit dated May 2, 1983. • Mr. Freemen added that the Town granted a permit on 3-22-06 with the name noted as Brewster Fish House Restaurant. • Mr. Zehnder said that was granted with the understanding of ZBA appearance. • Mr. Nixon added that he and his family had been coming to Brewster in the late 60's and he remembers it as Stony Acres Lobster Pound - a bonified takeout restaurant. The building looked essentially the same. Open to Public Input • Tim Geisler (Brewster Taxpayers Assoc.) asked what was meant by'~alter the use". • Mr. Freeman said it may have had a use of just a market now change to a restaurant. Market is more of a retail operation; restaurant is a different use involving trafFc, parking and BOH. • Jim Geisler added the word "restaurant" has not been understood by anyone. -2- • Susan Lindguist noted she was on the ZBA when the application came before them for change from fish market to restaurant. This was granted then, keeping the same size. It would be nice for this to be open year round for the year round population to use. • Mr. Zehnder added that application was not a change of use but to expand the size and at the time they withdrew the application without prejudice. • Ms. Lindquist said they assumed at the time it was a restaurant. • Lisa LaBrech said that the town is fortunate to have such a restaurant and it is great for the community to visit it when it is quieter. • Mr. Freeman noted that the Board had received 2 letters in support of this application. Motion by Mr. Nixon to Close to Public Input. Second by Mr. Harrison. VOTE 5-0-0. BOARD DISCUSSION • Mr. Freeman said there are two issues to determine, it was advertised as a Special Permit or Variance. • Mr. Harrison asked if it was a change of use. The market was pre-existing. • Mr. Zehnder said the same use would be sufficient. • Mr. Staley added it began as a retail fish market with food on the side, it evolved into a restaurant. • Mr. MacGregor said he would approve a Special Permit. • Mr. Nixon feels it fits exactly into 179-28A- not substantially different. • Mr. Jackson feels that the use has changed but this is good and should be formalized. Motion made by Philip Jackson GRANT a Special Permit to recognize the pre-existing use that has evolved into anon-conforming restaurant use. Second by John Nixon. VOTE 5-0-0 Motion made by Philip Jackson to withdraw without prejudice the application for a Variance. Second by John Nixon. VOTE 5-0-0. 06-41 David + Lori Rome, 108 Susan Lane, Map 24 Lot 40-25. The applicant seeks a Special Permit and/or an appeal of the Zoning Agents decision MGL 40A-9 and Brewster Bylaw 179-4 and 179-2 regarding use of office space over a detached garage in a residential zone. Members hearing this case were Messrs. Jackson, Nixon, MacGregor, Freeman and Kearney. The applicants, David and Lori Rome were present. Mr. Rome gave a brief overview of the application. They recently erected atwo-car garage with space above for a home office. Throughout the process the Building Inspector never had a problem. They were then sent a cease and desist order for the office above the garage. Nothing has changed except the placement of the office from the basement to above the garage. No change in employees or amount of traffic. They are requesting an Appeal of the Zoning Agents decision and allow the office to exist. BOARD DISCUSSION • Mr. Freeman asked Mr. Rome to explain the sketch that originally shows a bedroom/bath. • Mr. Rome said that the architectural plans were from a plan they had seen elsewhere without changing that from abedroom/bath to an office. When the final inspection came, they used those plans which were in error. -3- • Mr. Freeman asked what kind of equipment is used for this business and how many people work there. • Mr. Rome stated just himself and an Office Manager. His business is "disaster clean-up" and his vehicles (except personal vehicles) are kept off site on Great Western Road in Dennis. • Mr. Nixon asked if there was any room at Great Western Rd. site for an office. • Mr. Rome said N0, it is just an unheated bay. No plumbing etc. It is on S+J EX site. • Mr. Jackson asked if the residence was in the RM district. • Mr. Rome said YES. • Mr. Jackson said that according to Brewster Bylaw, page 33, Table 1- use, home occupation is allowed by Special Permit inn RM district. • Mr. Kearney asked how many people you employ. • Mr. Rome said three, if larger jobs they use sub contractors. • Mr. Kearney noted that letters received indicated a problem with traffic. • Mr. Freeman asked if there are any other trucks coming to the site. • Mr. Rome said rarely, he usually goes to the customer. • Mr. Freeman noted the following letters were received; Shook + Lend in favor, Jorgensen in favor, and Kirkpatrick opposed. Neighbors seem concerned about possible commercial use of the property. Open to Public Input • Ann LeMaite asked if home occupation is commercial. There were many vehicles there for the construction process-many with Mr. Rome's company name on them. • Mr. Freeman said this is allowable during construction. • Ms. LeMaite said this was during and after construction also 108 Susan Lane is listed as the business address. • Jennifer Taylor said her son is the only other employee of this company; he uses his truck to come in and out of the neighborhood. The truck is garaged at her residence. • David Duval added the office used to be in the basement, now just moved to above the garage. Most vehicles are kept off site. • Paul Provolas has been a resident for 25 years and this is a residential area not commercial. • Steven Shooker has been in the area for 30 years and the traffic has not increased. He works from his home as well and Mr. Rome is not doing anything different from what he has always done. FURTHER BOARD DISCUSSION • Mr. Freeman said there is a maximum time limit to Appeal the Zoning Agent- 30 days from the cease and desist. • Mr. MacGregor noted that if we vote to uphold the Zoning Agent, do we re-apply for a Special Permit for home occupation. • Mr. Freeman asked how does the Board wishes to handle this - a Special Permit or Overturn Zoning Agent. • Mr. Jackson feels it is all based on 179-37C- home occupation definition (page 75) meets everything except not in principle building. • Mr. Nixon says it should be in residence not another structure. • Mr. Jackson stated the office is not in the principle building. • Mr. Freeman added that the problem is in the language (pg 11) as "dwelling unit". • Mr. MacGregor said the business was is the principle building until he built the garage. • Mr. Freeman asked if the "unit" includes the garage. • Mr. MacGregor asked how much of the garage is the office. • Mr. Rome said to the right side of the upstairs. -4- • Mr. Freeman said less than 40% of the entire structure is the office. As you enter one side has office supplies and equipment, the other side is a sitting room with shower and bath. It qualifies as a home occupation. • Mr. Jackson noted they could put conditions on the traffic. • Mr. Kearney sees no problem with the home business but he does fear as the business grows would there be more problems. Parameters should be placed before it has to move to another location. • Mr. Nixon asked if they were setting a precedent, a home office other than in a home. • Mr. Rome indicated the business size is about as large as it will get, he has been running about 10 years. • Mr. Freeman said quite a few businesses operate the same way. He is not sure as "unit" is main building. Off site for extra equipment is fine. • Mr. Kearney asked where the employee parks. • Mr. Rome said 9-5 to the side of the garage. • Ms. LeMaite asked why the Board is not considering a late filing. • Mr. Freeman said it is within the Building Inspectors time frame. • Mr. Harrison said a Special Permit has no time frame. • Mr. Freeman asked if this is considered a Special Permit not an Appeal of the Zoning Agent conditions will be needed. • Mr. Nixon said they have to limit the amount of traffic. • Mr. Kearney also added they should stay within the existing boundaries; 1 owner, 1 office employee, and 1 part=time worker. Motion by Mr. MacGregor to Close to Public Input. Second by Mr. Kearney. VOTE 5-0-0. THOUGHTS of BOARD • Mr. MacGregor feels a home occupation is legal with a Special Permit when less than 400 s.f.. • Mr. Kearney has concerns for larger than passenger vehicles. • Mr. Jackson noted he is conflicted - he agrees with Home Occupation and consistency is important but "principle building" is bothering him. He would consider use with restrictions. But he wants to make it clear that Mr. Staley should not stop inspecting these types of things. • Mr. MacGregor also feels this should remain with present owner only. • Mr. Nixon noted he is opposed because of 179-37 B+C-limit to residence itself. Motion made by Paul Kearney to GRANT a Special Permit for the use of the office space for a home occupation at 108 Susan Lane with following conditions; this owner, this business only, limit the number of vehicles to present owners, 1 office personnel and 1 company vehicle (excluding personal vehicles). Second by Bruce MacGregor. VOTE 4-1-0. Mr. Nixon dissenting Vote. Motion by Mr. MacGregor to withdraw without prejudice the Appeal of the Zoning Agents Decision. Second by Mr. Jackson. VOTE 5-0-0. 06-42 Wayne Hyman, 3671 Main Street, Map 11 Lot 25. Applicant seeks a Special Permit under MGL 40A and Brewster Bylaw 179-25B, toalter anon-conforming structure to create a 2"d floor. Members hearing this case were Messrs. Harrison, MacGregor, Stewart, Kearney and Ms. McInerney. -5- Mr. David Duval was representing Mr. Hyman. Mr. Wayne Hyman was present at the meeting. Mr. Duval gave brief overview for this project. This is the rebuild from the house that burned previously. We would like to add a dormer to the 2"d floor to add a bedroom. BOARD QUESTIONS • Mr. Stewart asked if it is under construction now. • Mr. Duval said they will not continue until ZBA approval. • Mr. MacGregor noted the upstairs space is unfinished. What will you do with this space? • Mr. Duval said there will be no more than 2 bedrooms on site. • Mr. Hyman said there will be one bedroom upstairs • Ms. McInerney asked if HDC had put any restrictions on the rebuild • Mr. Duval said they asked the dormer be mover slightly. • Ms. McInerney asked what was the proximity to the wetlands. • Mr. Duval said they have been to Conservation and there is no change in the footprint but they were asked to add gutters with downspouts. • Mr. Stewart noted the space upstairs is 18 x 20. • Mr. Kearney said the height has not changed. • Mr. Duval said it is little higher (4 feet approved by HDC) • Mr. MacGregor asked if open basement • Mr. Duval said walkout but unfinished. • Mr. Stewart asked if this was just a bedroom, no bathroom. • Mr. Duval said they are leaving it open for future expansion. • Mr. Freeman said Board of Health determined the number of bedrooms. • Mr. MacGregor said this is approved for 2 bedrooms; one up and one down. • Mr. Hyman said it is now 2 small bedrooms on 1 floor. • Mr. Harrison said this can be rebuilt as a matter of right. • Ms. McInerney feels if increasing the height it increases the volume. Open to Public Input • No one spoke to this issue Motion by Mr. Harrison to Close to Public Input. Second by Mr. MacGregor. VOTE 5-0-0. THOUGHTS • Ms. McInerney is concerned about the increase in volume because of the increase in height. She is also concerned with future of the other buildings. Are we setting a precedent? • Mr. Freeman said this is the largest of the 8 units. • Mr. MacGregor stated this was a thought not heard from tonight-this area is extremely important to affordable housing. It is nice to have a 2"d floor; it will make it easier to live there. • Mr. Stewart mentioned it does increase volume but not to the category of a Variance. There is an increase in the intensity but not of the neighborhood. • Mr. Harrison shares Ms. McInerney feelings about others possibly coming before the ZBA but not opposed to one unit expansion. • Ms. McInerney said she would consider approving with review of affordable housing. Motion by Brian Harrison to GRANT a Special Permit to alter anon-conforming structure to create a 2"d floor as shown in Cons. plans SE 9-1319 filed 8-29-06 for managers quarters. No inference is to be made toward the other units. Second by Mr. Kearney. VOTE 5-0-0. Mr. MacGregor left the meeting at 8:45PM -6- 06-45 lames + Kathleen Doherty, 341 Robbins Hill Road, Map 2 Lot 30. The applicant seeks a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25 (B) to extend and alter a pre-existing nonconforming structure. Members hearing this case were Messrs. Nixon, Jackson, Stewart, Kearney and Ms. McInerney. Thomas Moore (Builder/Designer) represented Mr. Doherty. Mr. James Doherty was present at the meeting. Brief outline of this project was given by Mr. Moore. There are 3 structures on this property. This is the one on Robbins Hill Road. At this time it is uncertain if the owner would like to remodel or tear down and rebuild completely. This has just come to light this weekend as to the amount of work and cost incurred. BOARD QUESTIONS • Mr. Nixon said that if there is an increase in the footprint they would need a Variance. • Mr. Freeman added that it should be demolished after the permit. • Mr. Moore said they would be using the same footprint. • Mr. Stewart asked about the 3 buildings on the lot. • Mr. Freeman said there seems to be some question as to when this was built. It could have been before zoning applied thus it is pre-existing and non conforming. • Mr. Freeman suggested a possible Continuance until this is determined. • Mr. Doherty said the possibility of a rebuild just came to light recently. He asked if it matters if it is a knock down or a renovation. • Mr. Freeman said they must know when it was built for pre-existing and non conforming. • Mr. Stewart asked what about the cottage. • Mr. Doherty said the intent was to stay in footprint. • Mr. Freeman added it is probably a better way to build as new rather than add on. • Mr. Stewart said the date is critical. • Mr. Moore asked the Boards opinion of how it looked as planned. • Mr. Jackson asked about building #2- 2 bedroom cottage with bathroom, no kitchen. • Mr. Freeman said he would like to see the height indicated as well as more detailed floor plans. Mr. Moore and Mr. Doherty consulted and requested a continuance. Motion made by Mr. Arthur Stewart to CONTINUE this applicant until February 13, 2007 meeting. Second by Mr. John Nixon. VOTE 5-0-0. Motion to adjourn at 9:10 PM by Ms. McInerney. Second by Mr. Nixon. VOTE 6-0-0 d rn Ily submitted, m ~" / i' /~ A 1~- - - ~' A' M o r , Jerk ~ ~ iJ~ or -:;