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HomeMy Public PortalAboutZoning Board of Appeals -- 2007-01-09 MinutesDate approved 2-13-07 Vote 6-0-0 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes ]anuary 9, 2007 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; Neva Flaherty. OLD BUSINESS • 7anuary 30, 2007 - We will be holding a hearing for Comprehensive Permit application. All members have been given the packet for review. This property is White Rock Commons at 157 So. Orleans Road, presented by Andrew Singer-attorney. • There is another Comp. Permit to be filed within the next few weeks that will need a hearing within 30 days of acceptance. Checking Board members availability for Tuesdays in February. February 20, 2007 was agreed upon as the most members available. Board will be notified as soon as the filing has been accepted. (due to late filing date we going with February 27, 2007 as opening hearing for Habitat for Humanity.) • Ms. McInerney asked about the possibility of developing an index for the Bylaws. This was "tabled" for a while as Caryl Garrow has left the Planning Board and Marilyn Mooers is covering both areas for a while. When the Department has settled this will be a matter of consideration. NEW BUSINESS 07-01 Douglas A. Grover, off So. Orleans Road, Map 45 Lot 65. Applicant seeks Appeal of the Zoning Agents Decision under MGL 40A, Section 8 and 15 and Brewster Bylaw 179-51 to remove cease and desist order regarding operating a business and storage of commercial equipment on this properly consistent with Special Permit 94-39. Members hearing this case were Messrs. Jackson, Nixon, Harrison, Stewart and Freeman. Ms. Lois Farmer (Attorney) represented the applicant. Ms. Cindy Grover and Mr. Douglas Grover were also present. Activities on this properly have been ongoing since the late 80's or early 90's without requirement of Water Quality certificate.. Ms. Lois Farmer passed out a series of documents that she would refer to through her presentation for the history of the property. First is a Business Certificate, dated 1990 for DG Digginca, a septic installation and excavation business. Second a Business Certificate dated 1991 for a tree farm. Photos 3-6 are aerial photos of the property from 1991-2001, showing excavation of the sand as early as 1991. Areas identified with a legend. Next #7- shows the "wood stockpile" which shows left over wood from roof repair. Picture on the bottom is sand that has been taken off Lot 36 predominantly for use on the tree farm and septic business. ZBA minutes 01-09-07 -2- #8 Water District Bylaw from 1982 that does not show any requirement for Water Quality review. There is a statement that excavation should not be below the 4 foot historic ground water level. Building permits have been issued over time for this properly (1999 for the construction of the barn) no certificate required and issued. Concern of Mr. Staley that a Water Quality Certificate should have been obtained in 1994. In 1994 the septic business equipment had no mention of water quality certificate was being needed. These were activities to be grandfathered. The 1994 Bylaw was for new uses and these had been existing. To address the points in the Cease and Desist letter; 1. Stockpile of materials-sand used for roads and septic fill 2. Stockpile of construction lumber-just left from construction-to be used on other projects 3. Tools and equipment- Special permit of 1994 allows storage on the property 4. Use of the farm building-do minor repairs on equipment(sent out for service/repairs) 5. Building Department records-solved 6. Water Quality Certificate of Compliance-not required /grandfathered. In operation 22 years-no question on this (should be allowed to continue) 7. Greenhouse framework-permit issued for plastic covering, always tearing, has been replaced with wood- will be corrected if requested. 8. "mining"- taking sand for tree farm and septic business since late 80's and early 90's Position on Cease and Desist is based on insufficient information and manner of operation. We feel this should be withdrawn. BOARD QUESTIONS • Jackson- septic systems are pumped periodically, what is done with the contents? • D. Grover-we don't pump at all, only install • Stewart -This concerns lots 65 and 36; how is 36 zoned. • C. Grover- front is residential, back is industrial • Stewart -Town permit to mine on lot 36 • Farmer -correct, going on for such a long time, we feel it is grandfathered. • Stewart - do you use Timberline Drive? • C. Grover -Mansion Road, not Timberline Drive. Entrance to 441 South Orleans Road since 1994. • Freeman -has sand mining increased much, it appears small and shallow. • D. Grover -not much increase • Freeman -two areas merged- not increase much in scope. • Jackson - in 1994-95 Special Permit asked for trees to screen area. • C. Grover -yes, down Timberline Drive, left side is screening • Freeman -have you appeared before water Quality Board • Farmer -they are in the processes of an application but it is hard to decide what for. They don't excavate below the 4' historic groundwater level. • Freeman -179-58 needs clarification-prohibited uses #8-earth removal (approved in 2004) • Farmer - if pre-existed in 1994 it is not applicable now. Open to Public Input • Victor Staley -Water Quality Review Committee letter issued from Water Department. This letter questioned the following; 1. hard to tell the delineation from tree farm and excavation business 2. permit in 1999 only issued for farm barn 3. fire recently-new building slightly different from original ZBA minutes 01-09-07 -3- 4. Tree farm use stopped/septic construction business started inn 1994. Water Quality Review certificate needed to be obtained. 5. Is excavation grandfathered-officially recognized in 1994 • Freeman -what is meant by "mine to considerable depth" • Staley -overlay WQPD- section 39- parameters to maintain 4' high concern of QWR. • Farmer -with regard to abutting property, focus stump dump burying, not the sandpit operation. • Staley -not clear where the two businesses start and stop. Board clarify this building inclusive; 3 businesses; mining, septic and tree farm. • Farmer -there is no mining business-what you have is limited excavation of sand to use for 2 businesses-tree farm road and occasionally septic system installation. Not a 3~d use. Special permit issued for storage of septic equipment in the building on the tree farm. Business certificate dated 1990 (DJ Digging) • Staley - if you recognize this mining operation this could explode into other issues. The language in 1994 notes "several years ago" regarding the tree farm. Some ground water protection should be considered. • Freeman -what did DG Digging include? • C. Grover -installation of septic systems. • Harrison - do you have any objection to go through the WQPD process? • Farmer -time consuming and costly. Excavation permitted above 4'. The Grover's have started to look into the process. Engineering and Attorney are costly. • Jackson - we are concerned about clean drinking water. • Farmer - we all want clean drinking water. • Stewart -how do you know where you are on that lot without a control, monitoring well. • Farmer - it is controlled by the operator- markers for the 4' level. • C. Grover -electric company lines divide industrial and residential. 5 wells outline lot 36. • Staley -this concerns not only excavation but the business-vehicles in buildings. • Freeman -the Barn location is removed from the forest area but part of the same property. • Staley -any non residential in zone 2 should receive WQRC review and certificate. Do uses predate WQRC? If grandfathered, specific date identify mining use and septic business. • Jillian Douglass - Ms. Farmer alluded to adjacent property-WQRC district-if a violation is the only thing that triggers this, where is the protection. Motion by Mr. Harrison to Close to Public Input. Second by Mr. Nixon. VOTE 5-0-0. BOARD DISCUSSION • Harrison -Tree Farm is grandfathered. Septic business is there, not "mining". Sand and materials are elsewhere. Mining is a gray area. • Stewart -septic permit (94-39) allows storage of equipment. Why didn't issue of excavating sand as part of that decision. Not big or deep but where does it go in the future. • Harrison -question is if grandfathered use we hope they would go voluntarily to WQR. • Stewart -clearer if showed in Special Permit. • Jackson -Clear the tree farm is fine. Special Permit for the septic business is OK. Mining in industrial district. Equipment storage is allowed by Special Permit. Authority of WQRC for public safety, in favor of allowing business but restricts soil mining. Voluntary regulate oversight of WQRC. • Nixon -agree with Mr. Jackson. Primary issue no extention of business. Use regulations are being met is fuzzy. Certain requirements and review as conditions. ZBA minutes 01-09-07 -4- • Freeman -agree with both Mr. Jackson and Nixon. Quite difficult to discern, not a problem with Grover's business but Water Quality is our responsibility (backup findings and intent). Water Quality and industrial areas overlay not a good idea. In favor of lifting the order but direct applicant to go to WQRC. • Jackson -would like to ask the Grover's their thoughts. • D. Grover -Cost and time is an issue, have started to look into WQB requirements. • Farmer -clear going on or before 1994 and well before 1982. Encouraged that ZBA feels nothing is going on that property; we are all concerned about the water. • Freeman -Activities are not culpable in any way, combination of 2 overlay districts- it is the Boards responsibility to determine best interest to the town. Motion made by Mr. Jackson to REMOVE the Cease and Desist, under MGL 40A, Section 8 and 15 and Brewster Bylaw 179-51 regarding operating a business and storage of commercial equipment on this property consistent with Special Permit 94-39, contingent upon the Grover's and WQRC discussing this issue within 60 days in order to institute their review of the situation leading toward a certificate of compliance. Second by Mr. Stewart. VOTE 5-0-0. 07-02 Unique Properties, LLC, Winstead Road, Map 49 Lot 8. .Applicant seeks Appeal of the Zoning Agents Decision under MGL 40A, Section 8 and 15 and Brewster Bylaw 179-20.6, (F) to place a sign to define PondOaks subdivision. Members hearing this case were Messrs. Jackson, MacGregor, Kearney, Stewart and McInerney. Roger O'Day (Attorney) represented applicant: Unique Properties LLC James Cofield-Manager of Unique Properties Mr. O'Day was asked to give an overview of this application. Mr. O'Day noted that the subdivision identification section of the sign Bylaw is lacking. There are dozens of signs all over town but the Bylaw is silent in this matter. This sign is mentioned in the covenant of the Planning Board Subdivision special permit approval. Location is behind the low stone wall at the entrance. Mr. Cofield said the signage is designed in keeping with the quality of the subdivision. It is a low profile sign; 1.5 feet above the ground level and 2 feet high and set back from the street. It enhances the subdivision and important to public safety. They have had approval of landscaping design from Conservation Commission on 8-13-2004. BOARD DISCUSSION • Stewart -definition of signs and requirements of each district, this is residential district. Why do you feel the requirements of the residential district don't fit, 20 s.f. doesn't fit. • Cofield -low profile sign and away from the street. • Jackson -allows temporary subdivision lot plan allowed, a year only. • MacGregor -nothing shown here at 20 s.f., other signs shown are bigger. • O'Day -understanding they were referred to the ZBA not because of the size but the ambiguity of the Bylaw. • Stewart - 20 s.f. sign requires aVariance- my opinion Open to Public Input • Stewart - I thought they were sent to this Board because too big for residential district. • Victor Staley -pictures you are looking at did not submit application so they should not be given any legal recognition and or they may pre-date any sign Bylaw. Redone in mid to late 80's. It says subdivision identification sign but no where does it describe what a ZBA minutes 01-09-07 -5- subdivision identification sign includes. Can't find it as anything. Maybe an oversight. Not the size, the confusion. • Freeman -what is a "quarterboard sign"- is in the definition? Is it applicable here? • MacGregor -Does the subdivision need a 20 s.f. sign? • Cofield -very low profile, 20 feet of the road. • MacGregor -Brewster sign code is not working-too small. The town voted for it. This is one of the biggest one. • McInerney - to Mr. Staley- do you mean literally, you cannot find an allowance for this sign? • Staley - I cannot find a way to issue this sign. My predecessor issued these in the past but a replacement sign. This may be an omission error. 13 pages of sign Bylaws all under 20 s.f. Special circumstances-industrial zone 22A-1. • Cofield - If this sign was closer to the road, I wouldn't request it. This is 50' from Crowell's Bog Road and 35' from Winstead Road, where the temporary sign is now. • McInerney -Chief Jones comment- sign is properly done, OK'd by Fire Department for safety standpoint. • Cofield -from public safety standpoint was the visibility on the corner and the parking on the road • 7illian Douglass - if not a permitted sign, you need to find a way for a Variance and I see no way that can be justified. • O'Day - we are not asking for a Variance, no topographical reason. Ambiguity in the Bylaw. • Cofield - in the definition of the subdivision identification sign in the Bylaw there is no size indicated. • Freeman - an omission in our Bylaw, we are asked to rule on the Zoning Agents Decision-up or down. • MacGregor- if we vote against the ZA decision, can he issue the sign. • Stewart -the way I look it, he needs to have a sign there, we need to decide the size. • Staley -clarify- I don't take offense to this Board overturning my decision, you can dictate to issue a permit to a certain standard. • O'Day -you have the power to modify the Zoning Agent decision • McInerney - if the sign were smaller how would it impact the total sign? • Cofield - it is a carved sign, letters would have to be smaller Motion by Mr. Kearney to Close to Public Input. Second by Mr. Stewart. VOTE 5-0-0 FURTHER DISCUSSION • Jackson- subdivision signs seem appropriate, size is an issue • Kearney -agrees, size is an issue • McInerney- approve the sign if 16 s.f. can be managed • Stewart- don't agree in 16 s.f., intent of Bylaw to keep smaller • MacGregor - 16 s.f. in commercial area on 6A is Ok • Jackson -should we make a statement out setting future precedent, if Board agrees? A proviso with 16 s.f. maximum for subdivision until Planning Board gets to change the Bylaw. • Stewart- this is an individual case, applicable to one. Motion made by Philip Jackson to OVERTURN the Zoning Agents Decision to allow a sign of 16 square feet (not applicable to future cases) according to the layout presented. Reference drawings 6002-3559. Second -Paul Kearney. VOTE 4-1-0 (Mr. Stewart- too large) 07-03 Philomena Karczewski, 1187 Main Street. Map 26 Lot 6-2. Applicant seeks Special ZBA minutes 01-09-07 -6- Permit under MGL 40A, Section 9 and Brewster Bylaw 179-36 to construct a studio apartment on 2"d floor of the existing shed to be occupied by the owner/manager of Isaiah Clark House Bed and Breakfast. Members hearing this case were Messrs .Freeman, Harrison, Kearney, Stewart and McInerney. James Stinson represented the applicant Stephen J. Glynn-Property Manager and Russ Hamlyn (builder) were also present as well as Ms. Karczewski. Mr. Stinson gave a brief overview. The property was purchased in 2006 as a 7 room Bed and Breakfast with no mention as to where the owners/manager was to reside. The applicant would like to renovate the building to the rear of the property (24 x 24 into one bedroom with a full bath thus freeing up a bedroom. This makes 8 rental units, so the Special Permit must be modified of 7 now to allow this use. The number of rooms to be rented as well as the renovation needs to be addressed. BOARD DISCUSSION • Kearney -not advertised as increasing rental rooms and not to modify a Special Permit. • Glynn - if a 7 bedroom rental, where do owners stay • Kearney -permitted as a 7 bedroom inn • Victor Staley - 7 bedrooms and owners living quarters in a separate dwelling is not clear in any of the old permitting. Property is large enough for a second dwelling unit. Bed and bath can be issued by right. • Freeman -this separate the owner from the B+B itself • Stewart - is this the barn with bedroom apartment • Glynn -the barn is not a legal apartment as well as being uninhabitable. It is used for storage. • Staley -the Board could look at 7 rooms and the owners move to a separate bedroom. • Freeman -Special permit modify change of owners unit, to go with the owner not the property. • McInerney -stipulation also not to be rented. Open to Public Input • )illian Douglass -clarification; 7 rooms to let and owners bed and bath. License not to change. • Freeman -new owners renew permits with the ZBA as a Special permit. • Staley -this is unusual in that the SP goes with the property not the owner. • Stinson -why does a new owner come back? • Freeman -for the Board to review operation such as parking, noise, and concern of neighbors. • Freeman -for the purpose of consistency across Brewster this should be continued but this particular B+B has been with the property not the owner. We could condition this. Motion to Close to Public Input by Mr. Harrison. Second- Stewart. VOTE 5-0-0 FINAL DISCUSSION • Stewart -looks good • Kearney - OK Motion made by Brian Harrison to amend Special Permit 86-19 and 89-05 to clarify it consists of 7 rental rooms in the inn and an owners/managers 2"d floor (bed/bath) in another room on the property. This Special permit will run with the owner. Referenced plan of Ryder + Wilcox dated 10-31-06, job #9952. Second- Paul Kearney. VOTE 5-0-0 ZBA minutes 01-09-07 Motion to adjourn at 10:05 PM by Mr. Harrison Second- Mr. Nixon VOTE 7-0-0 Resp ully submitted, ~~ arilyn Mooers, k ZBA minutes 01-09-07 -7- rA a ., -„ , rn _, A -Z7 lT'1 ,..i ,~ = ~