HomeMy Public PortalAboutZoning Board of Appeals -- 2008-01-08 MinutesDate approved 2/12/08
Vote 9-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
]anuary 8, 2008
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, Robert McLellan,
and John Nixon. Member missing; Leslie Erikson.
OLD BUSINESS
^ Motion made by John Nixon to accept the Minutes of Decemberll, 2007 as corrected. Second
made by Brian Harrison. VOTE 8-0-0.
NEW BUSINESS
08-01 Remand of Case 07-22, Ruth Mohr, an abutter to 42 Frank D. Lawrence Road (F.D.
Stroh), Map 36 Lot 49. To determine if Frank D. Lawrence Road is adequate to provide frontage for
construction of asingle-family dwelling at 42 Frank D. Lawrence Road.
Members hearing this case were Messrs. Freeman, Kearney, MacGregor, Nixon and Jackson.
Attorney David Reid represented Mr. Stroh
Attorney Peter Farber represented Ruth Mohr
Attorney Sharon Marchbanks-Brewster Town Counsel was present
Victor Staley-Brewster Building Commissioner was present
Mr. David Reid began with an overview. This is an appeal of Ruth Mohr, challenging the building permit
issued to Mr. Stroh. Originally challenged on the adequacy of Rulah Road. That hearing included
discussions regarding F. D .Lawrence Road 180 foot frontage. Original decision was not to overturn the
Zoning Agent-the building permit stood. Mrs. Mohr then appealed through the Land Court. Remand
request was to determine if F. D. Lawrence Road is adequate to provide frontage at 34 Frank D Lawrence
Road.
Since the last hearing Mr. Stroh amended the building permit application to list F. D. Lawrence Road (copy
presented for the record).
Mr. Freeman asked about the change of the subject property from 42 Frank D Lawrence Road to 34 Frank
D Lawrence Road. No reason for change brought forward on the new application and on the building
permit.
Mr. Reid continued; This lot was created in 1941 with the designation Narrows Road. The first plan was in
April 1924 (Book 23 Page 127), labeled Narrows Road including Lower Mill Pond Realty Trust. (Mr. Reid
presented materials at this time.) George Darby Cartway is the short section at the other end. Called
Narrows Road in the deed, now called FD Lawrence Road. Created by deed in 1941-no zoning
requirements were in existence. In 1960 Brewster adopted 100 foot frontage (public or private way). Lots
prior to 1960 were exempt from requirements (°shall not apply"), 5,000 square area and 50 foot frontage.
ZBA Minutes 01-08-08
Case law addressing Brewster Bylaw was Clark v Wagoner in 1994. Unpaved, undefined, private way
predated zoning/width and quality. Therefore exempt including 24' width.
Bottom line is that it would be very difficult to question FD Lawrence Road exists when there are 8 homes
listed there and have been for many years. Mrs. Mohr's home has FD Lawrence Rd as her frontage, why
not Mr. Stroh. Before zoning all it had to meet was 100' of frontage on any legal way. Ask to deny petition
and uphold the permit issued to Mr. Stroh.
Mr. Peter Farber, representing Ruth Mohr. Also present were Mrs. Mohr, her daughter and two sons.
Mrs. Mohr built the home in 1961. None of the homes on FD Lawrence Road were built after 1971, all
came under the old Bylaw (50' on any sort of road). In 1988 Brewster adopted the Dirt Road Bylaw with
restrictions minimum of 5 acres, etc... Mr. Stroh's lot would not pass under this bylaw. Trucks can not get
to Mr. Stroh's property without trespassing.
Handouts- original building permit with Rulah Road as the frontage.
Letter of 12-13-07 from the Building Commissioner gives FD Lawrence Road frontage for this lot.
Deposition by Mr. O'Reilly stated that Rulah Road as width of 25 feet. More deposition information
submitted. Remand would accomplish full hearing. Mr. Staley has flip flopped from 6-13-06 letter.
Clarke v Wagoner (1994) Land Court (Trial Court) not law of general application. 40A-6, 4th paragraph, lot
in single ownership. Eight other lots on Bakers Pond Road had received building permits. Planning Board
approved some ANR plans. All on FD Lawrence Road, homes built before 1971. Renovations come under a
different section. No original permits on FDL Road the last 30 years.
Mr. Stroh received the adjoining property from his mother in 1976. 1n 1983 he acquired the subject
property. At that moment in time you had common ownership. Merged with larger lot on 7-9-83 thus lost
separate status. Law of general application (case studies noted).
Reid- I can't comment on ownership of the other lot. Both decisions cited non-conformity as to size, non-
conformity in this case is frontage. The question is whether the road existed and met 1960 standards.
No requirement of review by Planning Board or Fire Department. Town of Brewster is bound by the Clarke
v Wagoner decision. Does not apply to prior existing plots.
Freeman- are you both aware of the street listing recognized by the Planning Board as FD Lawrence Road
as a street and it has been for some time.
Farber-where does it say the Planning Board has designated it as a street?
Freeman- Road Names recognized by the Fire Department and the Planning Board.
Farber -Road Names? Somewhere along the line that name was approved. I am looking at the ZBA Bylaw
definition.....no proof this is a public way, way certified by the Town Clerk, suitable grade etc .......
Freeman-we are indicating that here.
Farber- nothing in that document tells me there has been certification, just a listing. Must be something
more formal by the Planning Board.
Victor Staley-Zoning Agent
Refer to paragraph 3 of December 13, 2007 letter. FD Lawrence Road frontage is recognized as a
developable lot.
Ms. Sharon Marchbanks- Brewster Town Counsel
Here to answer questions but not to argue on your behalf of this application.
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Freeman-is single or common ownership an issue?
Marchbanks-no information at this time.
Staley-both the area and frontage are non-conforming under this standard.
BOARD DISCUSSION
^ MacGregor-The Town Bylaw (Dirt Road Bylaw) what is the position on 5 acres?
• Marchbanks-Clark v Wagoner is persuasive issue and should be considered.
^ Staley- wonder if the 5 acres would stand the test of appeals.
^ Marchbanks-protection for lots already in existence, if ownership doesn't change, new owner
should be aware of new Bylaw.
^ MacGregor- question to Mr. Farber-if worked with Planning Board and Town Counsel on the Dirt
Road Bylaw, do you remember getting any Town Counsel ruling at the time.
^ Farber-don't remember a specific ruling but must have adequate access.
^ MacGregor-why 5 acres; not 3 or 4?
^ Farber- ask for a Variance
• MacGregor-Town Meeting passed it but would it test in court?
^ Farber- only held in separate ownership
^ Freeman-26A says "regardless of common ownership"
^ Staley-merged lots are °regardless"
^ Reid-lot plan for the house, conforms to the front and side setbacks.
^ Nixon-regarding street list
^ Freeman-Street List 2007 issued by the Town Clerk
^ Staley-access is determined by two departments; DPW'curb cut permit" and Fire Department-
assign street address with final inspection meeting criteria.
Open to Public Input
^ Warren Mohr- felt Mr. Stroh needs the Board to grant a Variance for frontage.
^ Ruth Mohr-this lot does not have good access. I don't think there is access. Mr. Stroh has
removed the bound marker.
^ Theresa Labreque- does not have access, uses others property. Mr. Stroh stated it "is his right
to move the road". This is trespassing. No regard for others boundaries. FD Lawrence is not
plowed. Mr. Stroh knows it is not serviceable.
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^ Herbert Fulton-Regarding the Dirt Road Bylaw- Towns attorney reviewed prior to Town Meeting,
after approval it goes to the Attorney Generals office for approval.
Motion by Paul Kearney to Close to Public Input. Second by John Nixon. VOTE: 5-0-0
DISCUSSION
^ Nixon-general feeling FD Lawrence Road is a better solution. All facts regarding FDL Road
tonight-minor landfill-not a particularly good neighbor but we don't decide that.
^ Jackson-agree with Mr. Nixon, Mr. Reid's arguments are sound. I respect the Zoning Agents
opinion. The basis of Mr. Reid's argument is sound.
^ MacGregor-How the lot is treated is not a ZBA issue, we should listen to the court as to what will
stand on the frontage issue. I think we should go with Victor Staley and listen to Town Counsel.
^ Kearney-if the Town recognizes the road then I agree with Victor. What is happening on the lot is
a shame but not the issue.
^ Freeman-I agree with Mr. Kearney, substantial issues regarding being neighborly- but not a ZBA
issue. Common/single ownership in favor of Mr. Stroh. The definition of street is clear. Planning
Board and Town Clerk have verified FD Lawrence Road is such aroad-sufficient for traffic and
frontage just by the listing. I feel it is not appropriate to overrule the Zoning Agent. Why are
other homes there using the same road as frontage and they want to deny Mr. Stroh?
^ Nixon- we take into consideration neighbors opinions. Can we add a condition regarding the
"rubble" and °shacks" etc.?
^ Kearney-helpful but this concerns "ownership" of the road and there should be no trespassing.
^ Freeman- We can ask Victor if this can be accomplished.
^ Staley- could be but we are not here to determine how someone lives, be cautious.
^ Kearney- Is it unreasonable for specific road definition.
• Staley- not sure this can be done. Fire Department is aggressive about access before final
approval of occupancy permit
^ Freeman- what are your thoughts on Jack's proposal of conditions?
^ MacGregor- I would like to stay away from that.
^ Marchbanks- you are here for one issue, frontage on FD Lawrence Road
^ Reid- a lot of what you see is because it is under construction. It will improve with time and
completion. Mr. Staley has been working with Mr. Stroh regarding the other buildings.
^ Nixon- we have gone about as far as we can, unfortunately we can usually put conditions but not
here.
ZBA Minutes 01-08-08
^ Stroh-Most of the "stuff" is building materials. Each shed has a permit and will be moved to the
proper setbacks. I understand the concerns of the neighbors. For information-the road is plowed.
^ Nixon- withdraws suggestion for conditioning the motion.
Motion made by Paul Kearney to UPHOLD the ZONING AGENTS DECISION and affirm the building permit
using Frank D. Lawrence Road as adequate frontage for lot at 34 Frank D Lawrence Road. Second by
Bruce MacGregor. VOTE: 5-0-0.
07-31 Robert ]. Ford, 487 Tubman Road, Map 26 Lot 57-1. CONTINUED. The applicant is
seeking a Special Permit under MGL 40A and Brewster Bylaw 179-25 to demolish an existing studio and
rebuild a 3 bedroom home to accommodate both dwellings.
Members hearing this case were Messrs. Freeman, Kearney, MacGregor, Harrison and Stewart.
Attorney George Cavanough represented Mr. Ford
Mr. Robert Ford was present
Mr. Cavanough gave a brief overview. The Board was favorable in the past but with the removal of the
garage and change the number of bedrooms to 2. Nothing else has changed. Square footage of home has
not changed. We will need a revised plan with garage removed and date of revision.
DISCUSSION
No questions at the moment.
Open to Public Input
• Paul Sullivan-in favor of this project as it provides possible additional rental property.
Motion by Arthur Stewart to Close to Public Input. Second by Brian Harrison. VOTE: 5-0-0.
FURTHER DISCUSSION
^ Stewart-I am in favor, he did what we asked.
^ Freeman- how soon will we get the drawings?
^ Ford- within a week.
^ Harrison-the plans you show now, show a solid rail/half wall at the top of the stairs, this must be
specific.
^ ]ackson-this can be clearly stated in the decision.
^ Kearney-meets all intentions we asked
Motion made by Brian Harrison to GRANT a Special Permit subject to new plans with no garage and clearly
showing ~/z wall not solid wall at top of stairs. Second by Arthur Stewart. VOTE: 5-0-0
Motion by Brian Harrison to adjourn. Second by Arthur Stewart. VOTE:5-0-0.
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ZBA Minutes 01-08-08
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