HomeMy Public PortalAboutZoning Board of Appeals -- 2007-02-13 MinutesPage 1 of 6
Date approved 03-13-07
Vote 6-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
February 13, 2007
Chairman Harvey freeman called the meeting to order at 7:00 PM. Members present were; Harvey
Freeman, Philip Jackson, Arthur Stewart, Brian Harrison, John Nixon, and Suzanne McInerney.
Members absent were: Paul Kearney, Bruce MacGregor and Neva Flaherty.
OLD BUSINESS
Motion made by Brian Harrison to accept the Minutes of December 12, 2006 as presented.
Second made by Suzanne McInerney. VOTE 6-0-0.
Motion made by Brian Harrison to accept the Minutes of December 14, 2006 as presented.
Second made by Suzanne McInerney. VOTE 6-0-0.
Motion made by Brian Harrison to accept the Minutes of January 9, 2007 as presented.
Second made by Suzanne McInerney. VOTE 6-0-0.
NEW BUSINESS
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.
At the request of the applicant;
Motion to CONTINUE until March 13, 2007 made by John Nixon. Second made by Arthur Stewart.
VOTE 3-0-0. (Ms. McInerney will not be present)
07-05 lames Montgomery, 170 Winslow Landing, Map 7 Lot 119. The applicant seeks a
Special Permit or Variance under MGL 40A-9 and Brewster Bylaw 179- 25B and 179-51 to extend an
existing deck on pre-existing nonconforming structure.
Members hearing this case were Messrs. Jackson, Harrison, Freeman, Stewart and Ms. McInerney.
Mr. and Mrs. Montgomery were present.
Mr. Montgomery gave a brief overview of this application.
The Original deck was in bad condition. As they were replacing the old deck they wished to add an
extension, with wider stairs and handrails on the stairs for safety. The extension is no more visible
with plantings all around. It is very well screened. To the South is a paper street with large trees.
To the East there is a four foot °reservations"area for utility lines. The lot behind (#92) is vacant
and in a natural state. The addition is 8 x 10. There are no objections from the neighbors.
Mr. Montgomery had a letter from Susan Smalkis (Map 7 Lot 101) with no objections. This letter was
presented to the Board for the file.
Questions from the Board
• Stewart- do you have to cut trees to do this work?
ZBA Minutes 02-13-07
Page 2 of 6
• Montgomery- No, none had to be removed.
• Jackson- Table 2 indicated; that" ~/z the required setback". Is that how you got to the 7
feet?
• McInerney- the plan is good, not infringing an anything.
• Montgomery-that is the size, as it is now.
• Freeman- what are you planning to do further?
• Montgomery-finish the railings and handrails.
• Freeman-this is not the usual way to do things.
• Montgomery-I apologize that we did it before the permitting process.
Open to Public Opinion
• John Nixon (Lot to North)- tastefully planned the increase, he is supportive.
Motion made by Arthur Stewart to Close to Public Input. Seconded by Brian Harrison. VOTE 5-0-0.
Discussion
• Harrison-Is this to be a Special Permit or a Variance? Further encroaching is a Variance.
• Jackson- I feel Table 2 (page 38) can be extended ~/z set back. It is under 4 feet in height.
• Harrison- what is the setback in effect now?
• Freeman-how would the Board like to approach this.
• Stewart- It doesn't fit a Special permit, there is significant infringement.
• Jackson- the Building Inspector feels it is a Special Permit.
• McInerney-this worries me, infringement makes it a Variance.
• Jackson- any clear cut ruling of 505 into setback. Does it relate to the zoning rules when it
was built or new. If it is the former-no problem, if the latter-then it is a Variance.
• Stewart- half of 20 feet is 10, this is 7 feet.
• Jackson- when was the house built?
• Montgomery- 1994.
• Freeman-can we explore the criteria for passage of a Variance.
• Jackson-that's tough
• Freeman- considerable hardship to be removed.
• Harrison- not the shape of the lot.
• Freeman- we are conflicted, I propose we go with a Special permit (ZA recommendation).
• Jackson- can we follow that?
• Stewart- it is intensification of non-conformity, rather that a new non-conformity,
• Harrison- that opens Pandora 's Box, I could not support a Special Permit.
• McInerney- I can not support it either.
• Freeman-can we work something for the Variance criteria?
• Harrison-the 4 foot "reservation" is for utilities, owned by the Association-unusable.
• Stewart- I like that.
• Freeman- not injurious
• Harrison- 13 feet here can step back a little
• Freeman-the deck is already built
• Jackson- can they take 2 feet off, making it 6 x 10
• Freeman- of the 4 criteria, #1 is the most difficult, no problem with the other 3
• McInerney- perplexed- some believe the soil condition, shape and topography are not OR but
all of these.
• Freeman- frequently interpreted that way.
• McInerney- are we selecting shape?
• Jackson- Can not make criteria #1, no matter how it is done.
Open to Public Input
• Tom Guarillo (builder) setbacks in this area are side and rear 10' front 20'
ZBA Minutes 02-13-07
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• Freeman-deck is not intruding
• Harrison-according to 40A-6 if a "virgin house" it is when lot created after "a bite of the apple"
they setbacks are today.
• Guarillo- previous house came before the ZBA but when investigated it was withdrawn and
permits issued for rebuild (10-10-20 approved).
• Harrison-this might have been a misinterpretation of tear down and rebuild- can't agree with
it now.
• Freeman-can we make a case for a Variance.
• Jackson-can't do it.
• Stewart-agree to go with Special Permit but it is a stretch. In the alternative- if could be
moved back a couple of feet it might be Ok
• Jackson- worse comes to worse; 5 x 10 extension less but not terrible.
• Freeman- consider an alternative, perhaps aContinuance-the applicant should talk to Victor
about what is permissible, what is he willing to accept and how is he getting to that. Is that
satisfactory with the applicant? To Deny is final but this is a way to adjust the situation. We
can reschedule for March 13, 2007. If you reach satisfaction with The ZA, it can be
Withdrawn. Find out how the ZA thought it could be a Special Permit.
Motion made by Arthur Stewart to CONTINUE case# 07-05 until March 13, 2007. Seconded by Phillip
Jackson. VOTE: 5-0-0.
07-06 Martin Reilly, 41 Captain Dunbar Road, Map 7 Lot 14. The applicant seeks a Special
Permit and/or Variance under MGL 40A-6 and Brewster Bylaw 179-6, 179-25A + B and 179-51 to
alter, extend and change (replace) apre-existing, nonconforming 1 Yz story dwelling with a 2-story
dwelling.
Members hearing this case were Messrs. Jackson, Harrison, Freeman, Nixon and Ms. McInerney.
Attorney William O'Brien represented the applicant.
Mr. Martin Reilly was present as well as Bob Perry (Cape Cod Engineering) as Project Engineer.
Mr. O'Brien gave a brief overview of this project. The application for Special Permit is similar to 10 +
16 Nancy May Path. Similar concept, move the house straight back 11 feet from the coastal dune.
No new conformity will be produced. They are improving conditions by moving it about 100 feet out
of the wetlands.
Setbacks are not changing- no more non-conformity. This predates zoning.
Mr. Reilly had a few words... They are moving the home back 11 feet and place on new piling
foundation. It has been HDC approved. When HDC looked at it they thought the structural integrity
was in disrepair. Our objective was to be respectful of historical integrity. Respectful of neighbors by
not going too high. They wish to keep it a 3 bedroom home on the same footprint. As a tradeoff
they are eliminating 42 s.f. (portion of the deck and one foot off the front of the house). Mr. Riley
then showed the comparison ridgeline and heights of adjacent homes.
Questions from the Board
• Nixon- what is the elevation of the proposed house?
• O'Brien- 39 feet high
• Nixon- about 5 feet higher than now.
• Perry- from raised finished floor, about 2 feet.
• Nixon- still a couple of feet unexplained, 34' to 39', ridge 5' higher.
• Perry- using pilings in the dune situation.
ZBA Minutes 02-13-07
Page 4 of 6
• Nixon- dune to the north is a fragile area, what does Cons Com have to do?
• Perry- there is a Landscape Plan-plantings and beach grass, a dune drift fence, lattice to
slow the wind drift. All will stabilize the dune.
• Nixon-it seems open to the northeastern side.
• Perry-there will be plantings, they will significantly reduce access by a boardwalk.
• Jackson- Victor Staley's letter of October had 2 issues; flood zone and height limit.
• Perry-height is under 30 foot limit
• O'Brien- pulling back removes it out of conservancy district. Height of structure is less than
25 feet.
• Perry- limit would be ridge elevation maximum 44.3.
• McInerney- Mr. Staley's letter stated it is closer than 50' to flood zone.
• Perry- 2/3 of construction is within 50 feet.
• McInerney- portion still violates that.
• Freeman- square footage seems to be increased some.
• Perry-same s.f. on the ground, increase on second floor. Cons Com maintained keeping
what is on the ground today.
• Freeman-exclude the deck from the proposed structure. Ex1- 21' existing, length is 31'
• Perry existing and proposed listed
• Freeman- drawing of front elevation, same foot print
• Perry- a little boxier than original
• Freeman-increase mass is upward.
• O'Brien-correct
• Freeman- is that a problem there.
• Reilly- not trying to increase mass excessively balanced.
Open to Public Input
• No one spoke to the issue
Motion by Brian Harrison to Close to Public Input, Second by Suzanne McInerney. VOTE 5-0-0
Further Discussion
• Freeman- Order of Conditions #SE913-63 has been issued. What does it embody?
• Perry- no impact to the dune, beach or flood zone. Plan executed with elevations,
landscape plan, enforcement (3 years), certificate of compliance and no septic issues. The
height was directed toward aesthetics.
• O'Brien -Special permit includes a copy of Landscape Plan.
• Reilly-Conservation was pleased the house was being moved back.
• Freeman-Fire Department had no issues.
• Jackson-applaud the data package, especially the new vs. existing. HDC, Cons Com and
neighbors are supportive.
• Harrison- in favor
• McInerney- still need more info for flood zone.
• Perry- within 50' of flood zone NOT in the flood zone.
• O'Brien- improving conditions by 200 feet. Some still in coastal resources.
• Reilly-that is why Cons Com application.
• McInerney- according to Bylaw-report is advisory.
• Reilly- they had several meetings to work out delicate balance, helpful to environment.
• Freeman- other homes will Cons Com use the same type of pilings.
• Perry-required by DEP and Cons Com
• Nixon- generally in favor, concerned about the increase in mass.
• Perry-still a beach cottage
ZBA Minutes 02-13-07
Page 5 of 6
Motion made by Phillip Jackson the GRANT a Special Permit to alter, extend and change (replace) a
pre-existing, nonconforming 1 ~/z story dwelling with a 2-story dwelling in full accordance with all
documentation presented;
1. Reference: A1, Thomas Moore, dated 12-21-06, #A1, A2, EX1 and EX2.
2. Topographical Plan by Cape Cod Engineering, Robert Perry, revised 12-12-06.
Second by John Nixon. VOTE 4-0-1 (McInerney not satisfied enough to grant with mass the issue
and a sensitive area.)
Motion made by Brian Harrison to withdraw the Variance application. Second by John Nixon. VOTE:
5-0-0.
07-07 Marilyn + Paul DeRuyter, 220-224 Black Duck Cartway, Map 38 Lot 87. The
applicant seeks an Appeal of the Zoning Agents Decision under MGL 40A-9 and Brewster Bylaw 179-
11, Table 3 to construct a 120 foot wind turbine in a RR district.
Attorney Roger O'Day represented the applicant.
Mike Reddish (builder) was also present.
Members hearing this case were Messrs. Jackson, Harrison, Freeman, Nixon and Stewart.
Property is located off Slough Road into the Punk horn. Very isolated area on 3.4 acres site. The
windmill is for personal use for home electricity.
Appeal of the Zoning Agents decision.
1. definition of structure
2. what is an accessory building-definition? Do we fit Table of Use regulation?
3. RR zone -accessory residential building is permitted use such as...."not limited to"..
4. Table 3: height and bulk: can be allowed.
Incidental to primary use, same lot, detached.
Propose 1 tower, 120 feet high.
Board Discussion
• Stewart-Table 3 "necessary permanent structure", how do you figure necessary for home.
• O'Day-fits within the list....flagpole. If you want to generate your own electricity it is
necessary.
• Nixon-another not defined, what is necessary?
• Stewart- arguments you game, this tower could be put anywhere.
• O'Day-not here to set a precedent.
• Stewart-but allowed
• O'Day-put limits
• Harrison- can not put conditions on yes or no.
• Freeman- this could be a case by case basis, location consideration.
• Harrison-according to item 6-not case by case, uphold or not.
• Jackson-very careful, keep consistency.
• Harrison-need a Bylaw change. Should come before the town. Associated with primary
use: use Variance-different category.
• O'Day-not applied for.
• Jackson- go to the town for Bylaw change.
• Nixon- Table 3 -flagpoles etc. not defined elsewhere. Can overturn ZA decision.
• Harrison-ZA is saying the Bylaw does not allow
• Stewart-not necessary, does not fit.
ZBA Minutes 02-13-07
Page 6 of 6
• Ritter-there was one on Great Fields Road in RR area.
• Nixon-must have a Bylaw
• O'Day- there are certain restrictions. Harwich and Orleans just passed a Bylaw.
• Freeman-would you rather withdraw rather than a denial?
Open to Public Input
• Suzanne McInerney-the idea of alternative energy is important. Concerned that if ZBA
overturns the ZA it is almost like creating a Bylaw. Dealing with policy. Policy goes
through town meeting.
• Roger O'Day-if considering a Bylaw change I hope they get guidance from other towns
Mr. O'Day made a request of the Zoning Board to WITHDRAW without prejudice this application.
Motion to withdraw made by Brian Harrison. Second by Arthur Stewart. VOTE: 5-0-0.
Motion to adjourn at 9:15PM made by Arthur Stewart. Second by John Nixon. VOTE:6-0-0.
Respectfully submitted,
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ZBA Minutes 02-13-07