HomeMy Public PortalAboutZoning Board of Appeals -- 2007-08-14 MinutesDate approved 10-09-07
Vote 6-0-Q
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
August 14, 2007
Chairman Harvey Freeman called the meeting to order at 7;00 PM. Members present were; Harvey
Freeman, Philip Jackson, ,Paul Kearney, John Nixon, Robert McLellan, Bruce MacGregor and Suzanne
McInerney.
OLD BUSINESS
Motion made by Phillip Jackson to accept the Minutes of July 10, 2007 as corrected. Second made
by Paul Kearney. VOTE 7-0-0.
^ Letter RE: Wells Court Comprehensive Permit (02-05) discussing Condition #4-gate.
Compromise has been reached, ZBA recognized the change as ~~not substantial" thus did not need
to be reopened to public hearing, Gate is to have aloop/post closure, it will be spring loaded to
ensure closing.. Each member who sat on this application in 2002 felt it was a satisfactory solution.
Possibly a sign indicating Emergency Vehicles Only. This OK with the Fire Chief. This is a final
resolution.
Suzanne McInerney left the meeting.
NEW BUSINESS
07-22 Ruth Mohr, an abutter to 42 Frank D. Lawrence Road (F. D. Stroh), Map 36 Lot 49. The
applicant seeks an Appeal of the Zoning Agents decision under MGL 40A-8 and Brewster Bylaw 179-26A
and B, regarding frontage and a foundation and building permit for the above address.
Members hearing this Case were Messrs. Jackson, MacGregor, Kearney, Nixon and Freeman.
Attorney Joe Mullin represented Ruth Mohr
Attorney David Reid represented Mr. Stroh
Mr. Mullin was asked to give a brief overview of this application.
This is an appeal. of the Zoning Agents Decision of Map 36 Lot 49. Referring to Site Plan ((8-11-06) Rulah
Road is not a road. It was a designation combing 2 names. Owned by Ruth Mohr. The only reference is in
the Stroh chain of title. According to research Book 578, language same in all deeds. Parcel 49. Deed
does not mention Rulah Road. Memorandum of research- submitted to Board at this time - no recorded
documents or plans which reference the existence of Rulah Road or specify the width of Rulah Road. Some
times called Narrows Road or George Darby Cartway. Referenced in Plan Book 488 page 100, Book 573
page 30 to show width of 25 feet.
^ Rulah Road does not satisfy criteria of road. (Mr. Mullin presented pictures)
• Parcel in question is owned by Ruth Mohr
^ It is totally unimproved
^ Not a public way, not endorsed by the Planning Board
• No access
ZBA Minutes 08-14-07
^ Zoning Agent relied on the engineers stamp to override the Bylaw
^ Property needed 100' frontage in 1973 and he does not have it now.
^ November 15, 2006- the Zoning Agent asked 2 things to be provided (deed referencing 25' road
and engineers plan referencing 25") this was not completed.
^ Rulah Road lists as 8' in width
We are requesting the Overturn the Zoning Agents decision for not adequate frontage.
Board Questions
^ Nixon-looking for confirmation of site plan
^ Freeman-revised plan dated 3-06-07 add Rulah Road in the notes. How was this done?
^ Mullin- in the early 1940's they combined both names to make "Rulah". Just listed, not acted
upon.
• 7ackson- hard to comment on documents presented at the night of the meeting
^ MacGregor-document refers to plans- Narrows Road, Rulah Road do you have them. Narrows
and FD Lawrence are the same.
^ Kearney- several references to 8' wide (FD Lawrence) but referred on plan as 25'.
^ MacGregor- anything written in the chain of title "rights of any road. Was the foundation the first
thing built on the parcel?
^ Mullin-sheds only
Attorney David Reid representing Frank Stroh was asked to give a brief statement.
^ Agree with background and history of the neighborhood
^ Not a single subdivision plan- developed before those were in existence.
^ Handout- Lot 49- Mr. Stroh (deeds included)-pink line is Rulah Road, Lot 87- Mill Pond Road
subdivision.
^ 1971 deed from Kazangian to Mohr, parcel between 71 and 49 (25 x 110) was named Rulah Road
^ MacGregor-is there any reference to Stroh's lot having right to it?
^ Reid- N0, no document, but because it is deeded it grants rights in it (law of property in MA).
^ Freeman- was Pond Road extended to make FD Lawrence Road?
^ Reid-southerly line of Rulah Road, record is there. No plans, but standards of this time actual
reference. Can't change historical absence. Bylaw- key provision 179.26 A- single family prior to
1973- 15,000 s.f. Minimum frontage 100'. Doesn't say street frontage. "A" does not refer to
str et. Comply at time it was created. Definition of street came in 1971. 1960-1971- all Bylaw
frontage on any public or private way. This was created prior to that. Case law- Clark v Wagnor
(Bakers Pond Road). Board applied the same definition. Board said NOT buildable. Court ruled
this does not apply- prior to zoing and all Bylaws. Not subject to 24' width.
^ MacGregor- fairly clear, Pond Road (no part) does not line up N/S.
ZBA Minutes 08-14-07 - 2 -
^ Reid- private property not zoning......(refer to recording)........
^ Macgregor- Stroh property originally part of 20 acres, used Pond Road for access.
^ Reid- or originally "Narrows Road" now FD Lawrence Road
^ Freeman- I would like Mr. Mullins response.
^ Mullin- respectfully disagree; lot 71 in deed "Rulah Road" never intended to be a road or never
was aroad-just a lot. Memorandum"principal purpose of frontage" refer to Case Law. Never
intended to be a road. Two conditions from Zoning Agent- deed with dimensions and engineers
plans- not complete. Engineers stamp does not make it legal.
^ Reid- if Mr. Lawrence said it was a road, how can Mrs. Mohr say it is not intended as a road.
^ Freeman-question of why FD Lawrence is not being used as criteria-is listed and is the property
address.
^ Macgregor-what was on the lot before, history of buildings?
^ Reid- covered well head, chicken coop, sheds. Mr. Stroh lived elsewhere (accessory buildings
only)
^ 7ackson- Maps 49 and 71, is it fair to say that the majority have houses?
^ Reid- yes, listed as FD Lawrence Road- 9 homes.
^ Kearney- the piece of property being talked about as a road, when frontage is on FD Lawrence.
Why are we talking about this?
^ Reid- this could all be avoided if we concentrate on FD Lawrence Road.
Open to Public Input
^ Margaret Lieber-abutter on FD Lawrence- recently rebuilt with all permits, how can this take
place without permits. Close to the water (an issue). Would like the Board to do a site visit.
^ Nancy Praig (Mrs. Mohr's daughter)- produced photographs
^ Theresa Labrecque-(FD Lawrence Road) Mr. Stroh has moved boundary stones, cut trees on
my lot.... Moved FD Lawrence Road. His property looks like a landfill.
^ Praig- made a new road to get cement trucks through
^ Freeman- this is a question of frontage.
^ Ruth Mohr-2 deeds "vacant strip of land" deede to Ruth Mohr as "Rulah Road"
^ Warren Mohr- property there before development
^ Reid- building permit issued, foundation legal, only contention is it doesn't satisft "street"
definition.
ZBA Minutes 08-14-07 - 3 -
Motion by Phillip Jackson to Close to Public Input. Seconded by John Nixon. VOTE: 5-0-0
Thoughts
^ Nixon- Mr. Mullin mentioned setbacks- they confirm to the minimum requirements. Setbacks hve
to refer to something, i.e.: a road in question. Rulah Road not a street. I feel this should be
overturned.
• Macgregor- Lot layout was in 1920, first time you build would be no setbacks.
^ Nixon- frontage must refer to something.
• MacGregor- the Building Department uses pre-zoning.
^ Nixon- Clark decision not applicable, based on frontage issue pre 1973 and after frontage has to
refer to something (road or way). Application fora 25' wide piece of property. ~~road" never
existed.
^ Kearney-agree with Jack, can't see the road definition-should not be treated as access or
frontage.
^ 7ackson-a lot of data presented, confusing and I hesitate to overturn the Zoning Agent.
^ MacGregor-This has been a lot on its own since 1941, everyone uses FD Lawrence road, the
Zoning Agent was correct.
^ Freeman-Rulah Road is not an actual road and does not provide access. There is FD Lawrence
Road. How does the Board feel about this as a substitute?
^ Kearney- not what is in front of us.
^ Nixon- an alternative in the long run that is Ok but the Zoning Agent should look at this lot and
conservation issue.
^ Freeman- this Board takes into consideration other Boards rulings and their interaction.
^ Nixon-should overturn the Zoning Agent.
^ Kearney-address the road issue only.
Motion made by Phillip Jackson to OVERTURN the Zoning Agent's determination of Rulah Road having
frontage (does not exist for frontage purposes). Seconded by Paul Kearney.
VOTE: MacGregor- NO
Kearney-YES
Jackson-NO
Nixon-YES
Freeman-YES
Motion fails 3-2-0
Harvey Freeman asked if there is anything else to be decided; support the Zoning Agent. This was
not advertised as a Variance.
Mr. MacGregor stated we have made our decision and did NOT overturn the Zoning Agent.
ZBA Minutes 08-14-07 - 4 -
^ Mr. Nixon said this could have been avoided if FD Lawrence Road was the frontage
^ Mr. freeman stated the decision as it stands supports the Zoning Agent.
07-23 Howard A. + Martha C. Dunbar, 0 The Channel Way, Map 17 lot 7. The applicant seeks a
Special Permit or Variance under MGL 40A -9 and Brewster Bylaw 179-52-6 to build asingle-story residence
in a soils conservancy area.
Members hearing this case were Messrs. Freeman, Jackson, MacGregor, McLellan and Nixon.
Attorney Benjamin Zehnder represented the Durbars.
Mr. and Mrs Dunbar were both present.
He was asked to give a brief overview.
This property is on Cobbs Pond. It is a combination of 3 lots. Within DEA soil area.
The purpose of this application is to show the upland component, the plantings and that it has been well
maintained. They wish to locate the structure in an appropriate area.
This is a Deerfield area (loamy soil). It would be a hardship if the owners cannot develop this lot.
Conservation Commission has developed an Order of Conditions.
Mr Dunbar noted they would like to build a house in keeping with the land. A true Cape Cod house, open
to the property. To breally a 3 bedroom but with Library and loft the BOH considere built for their own use
and the family to enjoy. They are planning on radiant heat, a "green building, with no basement. BOH had
Ok, soil issue is the last hurdle.
Board Questions
^ Freeman-what type of septic system?
^ Zehnder-BOH approval, Title V with pressure leach field, designed for 5 bedrooms
^ Dunbar-really a 3 bedroom but with Library and Loft, the BOH consider it 5.
^ Freeman-what does "50' filter strip" mean?
^ Dunbar-work limit boundaries
^ Nixon-what is the capped white pipe out there?
^ Zehnder- a well
^ Nixon-defined as "DEA" -poor filtering capacity?
^ Zehnder-special septic conditions
^ Nixon-loamy soil- do perk tests in area of the leach field- submit to BOH.
^ McLellan=`filter strips" not defined on the engineering drawing.
• Zehnder-it is work limit line, a copy of site and sewage plan was presented.
^ ]ackson-what are BOH and Cons Com #SE9-1372 dated 5-25-07
ZBA Minutes 08-14-07 - 5 -
^ Zehnder-both granted
Open to Public Input
No one spoke to the issue
Motion by John Nixon to Close to Public Input. Second by Bruce MacGregor. VOTE 5-0-0
Board Thoughts
^ Nixon-looks like a lovely house, appear to have addressed all issues by BOH and Cons Com.
Conditions of Variance to be addresses. Most direct route is a Special Permit.
^ Freeman- which do we have?
^ Jackson-a Variance is required, first criteria is unique to that area.
^ Macgregor- treat as a Variance, meets the criteria; soil conditions (small % of the area),
hardship-residential use in zoning application for area-major hardship, detriment to the public
good.
^ Jackson- fits right into the neighborhood
^ McLellan-no problem
Motion by Phillip Jackson to GRANT a Variance to Howard A. and Martha C. Dunbar Way, 0 The Channel
Map 17 lot 7. To build asingle-story residence in a soils conservancy area in accordance with BOH and
Conservation Commission conditions. Second by Robert McLellan. VOTE 5-0-0.
Motion by Phillip Jackson to WITHDRAW the application for a Special Permit. Second by Robert McLellan.
VOTE 5-0-0.
07-24 Stephen ). + Patricia E. Murphy, 0 Charles Street, Map 5 Lot 8. The Applicant seeks a
variance under MGL40A-9 and Brewster Bylaw 179-52 to determine if this lot meets frontage or other
issues effecting buildability
Attorney Benjamin Zehnder represented the applicant.
Mr. Zehnder requested a CONTINUANCE until September li, 2007 for further discussion with the Zoning
Agent.
Motion by Phillip Jackson to CONTINUE the application #07-24 until September 11, 2007. second by
Paul Kearney. VOTE: 6-0-0.
07-25 Arthur R. DuBois, 2377 Main Street, Map 15 Lot 66-3. The applicant seeks an Appeal to
Zoning Agents Decision or Variance under MGL 406 -9 and Brewster Bylaw 179-52, section 20.5 -A
regarding achangeable-copy sign at Northside Restaurant.
Mr. Arthur DuBois represented himself for this application. He is the proprietor of Northside Restaurant.
This application is in reference to the sign Bylaw 179.2-.5 for changeable copy signs. The Zoning Agent
interprets it as church, school, libraries and municipal events of important interest" which Mr. DuBois feels
his restaurant is of'~public interest". Especially in the winter. What we do and have as we grown and
ZBA Minutes 08-14-07 - 6 -
change to find out niche in Brewster. Options are a truck sign (tacky) or a roof sign (too far off the road).
Limited to the ~~name of the business" on the 2 x 2 hanging sign.
Board Discussion
^ 7ackson-the applicant has a point, the Bylaw is a general statement.
^ Freeman- how many signs do you have now?
^ DuBois- 2, including the changeable sign; post sign and sandwich board.
^ Freeman-have you talked with Victor Staley about how to change the sign?
^ Dubois-can change size, color, shape, not wording.
^ McLellan-what is the intent? Specials of the day/ menu?
^ Dubois-not process, informative, holidays, entertainment
^ Freeman-one single free standing business sign and/ or one wall sign. Color of the sign might
need a change.
Open to Public Input
^ Dubois- can changeable copy to be on the post. Be the only sign.
^ McLellan-any guidance from the Building Inspector.
^ 7ackson- 1 free standing and 1 on the building
Motion by Paul Kearney to Close to Public Input. Second by Robert McLellan. VOTE 5-0-0
Continued Discussion
^ McLellan-could go either way, should find a way for more signage
^ Kearney-signage is a problem, too rigid
^ 7ackson-we want him to succeed, only 2 signs (2"d put on the restaurant)
^ Nixon-difference of opinion, to prevent 6A becoming Rte. 28. Advertise by different means.
Changeable copy is for events (not on a regular basis). Sign laws need some work. On 6A less is
better.
^ Freeman-agree with Jack, sign regulation is for a reason. Not clutter the highway, could go on
the building.
^ 7ackson-may withdraw with 2 possible votes against
^ Freeman-changeable copy defeats the purpose. po you wish to withdraw.
^ Dubois- I request a Withdrawal.
ZBA Minutes 08-14-07 - 7 -
Motion by Phillip Jackson to Withdraw this application. Second by Paul Kearney . VOTE 5-0-0
07-26 Clayton A. Hoener, 195 Swamp Road, Map 18 Lot 23. The applicant seeks a Special Permit
under MGL 40A -9 and Brewster Bylaw 179-52-6 to build an addition onto asingle-family pre-existing
residence in a soils conservancy area (Amostown soil).
Members hearing this case were Messrs. MacGregor, Kearney, Freeman, McLellan and Nixon.
Stephanie Sequin of Ryder and Wilcox represented the applicant.
Mr. Hoener was present.
Ms. Sequin gave an overview of the project. This property was deeded in 1955. It consists of a 2 bedroom
home with a detached garage. It is pre-existing, non-conforming.
There is clean sand with ground water. An elevated septic system, designed fora 3~d bedroom. Board of
Health has approved to keep the system. Conservation asked the lawn area to be restored to a more
natural area. This is a single story home on a crawl space. 2300 s.f. with building coverage 7.5 % of land.
Board Discussion
^ Freeman- raised septic- pumps up. Is it working OK?
^ Sequin-occasional replacement of pump, otherwise working well.
^ Kearney-is there a crawl space?
^ Sequin- yes
Open to Public Input
No one spoke to the application
Motion by Paul Kearney to Close to Public Input. Second by Bruce MacGregor . VOTE 5-0-0
Motion made by Phillip Jackson to GRANT a Special Permit as presented with detailed plans. Second by
John Nixon. VOTE: 5-0-0.
07-27 David + 7udith Demos, 220 Winslow Landing, Map 7 Lot 116. The applicant seeks a Special
Permit under MGL 40A-9 and Brewster Bylaws 179-51 to allow retention of an existing non-permitted shed
within required setbacks.
Members hearing this case were Messrs. Jackson, Kearney, Freeman, McLellan and Nixon.
Mrs. Demos presented her application.
They were advised not to put the shed on a permanent foundation. There was a neighbor issue having a
shed at all due to past history with previous owner (Kennedy). The demos need the shed for storage of
lawn equipment and kayaks. The only issue now seems to be they shed is not fully shingled but we have
agreed to that.
Board Discussion
• Kearney-how high is the shed?
Z[3A Minutes 08-14-07 - 8 -
^ Nixon- it is an 8 x 10 shed with 7' pitch.
^ Freeman-when was the property purchased? Did you talk to the Zoning Agent before building the
shed?
^ Demos-only after the shed was put up
^ Freeman-do you know the zoning for sheds?
^ Demos-no objection from neighbors
^ Nixon- are you going to remove the old foundation?
^ 7ackson- what is the setback to the North side?
^ Nixon- 3" off the lot line.
^ Freeman-14.5' from shed to the house
^ McLellan-the old situation was the problem
^ Kearney-is in the best location
^ Freeman-check the tie downs on blocks for security of shed.
Motion by John Nixon to Close to Public Input. Second by Robert McLellan. VOTE 5-0-0
Motion made by John Nixon to GRANT the application as presented. The applicant should check with the
Zoning Agent for proper permits and review proper tie downs. Second by Paul Kearney. VOTE: 5-0-0
Suzanne McInerney resigned from the Board of Appeals as of August 18, 2007.
Motion to adjourn made by Phillip Jackson. Seconded by Paul Kearney. VOTE: 5-0-0
Meeting adjourned.
Resp Ily submitted,
~~
M ilyn Mooer rk
ZBA Minutes 08-14-07
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