HomeMy Public PortalAboutZoning Board of Appeals -- 2008-03-11 MinutesApproved 05-13-08
vote 7-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
March 11, 2008
Chairman Harvey Freeman called the meeting to order at 7:00 PM. Members present were;
Harvey Freeman, Philip Jackson, Arthur Stewart, Robert McLellan, and Leslie Erikson.
Members missing; Paul Kearney, Brian Harrison, John Nixon and Bruce MacGregor.
OLD BUSINESS
^ Motion made by Arthur Stewart to accept the Minutes of February 12, 2008 as presented.
Second made by Robert McLellan. VOTE 5-0-0.
^ Phillip Jackson presented a FYI report by Lombardo Associates regarding wastewater
treatment comparisons.
NEW BUSINESS
08-03 Stephanie Erickson, 32 Old Run Hill Road, Map 36 Lot 19. CONTINUANCE, The
applicant seeks a Variance under MGL 40A-9 and Brewster Bylaw 179-5, Table 2, Note 7
regarding setback regulations for conversion of a shed to a horse barn.
Jon Dean represented the applicant. Mr. Dean requested a Continuance for another month.
^ Freeman-concerned that many abutters and neighbors have come today to the
meeting.
^ Stewart-has Cons Com issue been addressed?
^ Freeman-why haven't you filed with Cons Com.
^ Dean-not within the Cons Com jurisdiction
^ Freeman- Mr. Freeman read the Cons Com comments into the minutes.
^ Peter 7ohnson- many abutters were ready last month and have shown up this month.
^ Freeman-would prefer Conservation opinion before we proceed
• Jackson-we should get Conservation Commission ruling and Continue for one more
month
^ McLellan- I agree
^ Erikson-I agree or they could withdraw without prejudice and come back at a later date.
^ Stewart-question to Jon Dean- are you prepared to present this tonight?
^ Dean-site plan for the wetlands is not available tonight. Ms. Erickson wanted to be here
but notified me just a short time ago to ask for a continuance.
^ Stewart-looks like Conservation is not a huge issue but can we go ahead tonight.
• Elizabeth Taylor-as a member of the Agricultural Commission; discussed this issue.
They would like to meet on site and talk with the owner to resolve the issues.
^ Freeman-I think this should be withdrawn w/o prejudice until all information is
complete.
^ Dean-I can accept that.
Motion made by Robert McLellan to WITHDRAW w/o prejudice. Second by Leslie Erikson. VOTE:
5-0-0
ZBA Minutes 03-11-08
08-04 N+N Real Properties, LLC, 2689 Main Street (]T Seafood), Map 14 Lot 50.
CONTINUANCE. The applicant seeks an amendment to a previous application 97-35 under MGL
40A-9 and Brewster Bylaw 179-9, Table 4 to increase total number of parking spaces attending a
proposed increase in seating capacity.
Members hearing this case were Messrs. Jackson, Freeman, McLellan, Stewart and Erikson.
Mr. Bud Noyes, the applicant, was presenting this application
Approved in 97-35 permit, 26 spaces/70 seats. Should have been 78 seats
If more than 78 seats then the appropriate path is the DPRC and the Planning Board.
Letter from Victor Staley dated 3-6-08
Discussion
^ Noyes-concerning the increased seating, especially egress, I will continue to pursue with
the Planning Board up to 122 seats. I am here to increase to 78 as it should be but will
continue further.
^ Stewart- how can you take a count with takeout?
^ Noyes-considered under ~~fast food" by the Health Department.
^ Stewart- if you go back through the Planning Board, they could increase the parking as
well.
^ Noyes-I seem to be getting a run around with the Health Department error
^ McLellan-I can live with approving 78 seats
^ Erikson- I definitely can approve 78 seats; I think that's as far as we can go tonight.
^ Stewart-the applicant seems to be getting the runaround
^ Freeman-the drawing provided tonight, shows proposed plantings as asked before. Mr.
Noyes may take this plan to the Planning Board and DPRC
^ Erikson-what happens after the planning Board?
^ Freeman-nothing for us; the Planning Board can issue Special Permits.
Open to Public Input
^ No one spoke to this issue
Motion to Close to Public Input made by Arthur Stewart. Second by Robert McLellan. VOTE 5-0-0
Motion made by Arthur Stewart to Grant a Special Permit to amend Case #97-35 to allow an
increase in seating from 70 t0 78. Second by Robert McLellan. VOTE: 5-0-0.
08-05 ]ohn + Charlotte Wright, 66 Anchors Aweigh, Map 6 Lot 70. The applicant seeks
a Special Permit under MGL 40A-9 and Brewster Bylaw 179-26-B to place a full foundation under
a non-conforming structure.
ZBA Minutes 03-11-08
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Members hearing this case were Messrs. Jackson, Freeman, McLellan, Stewart and Erikson.
Mr. Steve Allard represented John Wright.
Mr. Allard gave an overview of this project. It has a crawl space now as it was built in the 20's.
The Wrights would like to upgrade the heating and air conditioning and have them in a basement
area. This will be on the same footprint.
Discussion
^ Jackson-how are you doing this?
^ Allard-jacking the house up and pour foundation.
^ Stewart-what is the purpose of this basement?
^ Allard-utilities and storage
^ Erikson-any issues with septic?
^ Allard-no, in the driveway area. This has been approved by Historic.
^ Freeman-Conservation has no wetlands issues, Fire Department has no comments.
^ Allard-setbacks Ok on left and right, rear lot line is non-conforming
^ Erikson-is Lot 70 vacant?
^ Allard-homes on both sides, the Wrights have talked to the neighbors
Open to Public Input
^ No one spoke to this issue
Motion to Close to Public Input made by Arthur Stewart. Second by Robert McLellan. VOTE 5-0-0
Discussion
^ Stewart-good improvement
^ McLellan-wil they pour the foundation?
• Allard-pumped to the back corner.
Motion made by Arthur Stewart to GRANT a Special Permit to 08-05 as noted according to the plan
presented. Second by Leslie Erikson. VOTE 5-0-0.
08-06 ]ay Merchant, A. P. Newcomb Road, Map 36 Lots 1 and 5. The applicant seeks a
Variance under MGL 40A-9 and Brewster Bylaw 179-35-B, section 8 to change a previously
approved (by the Planning Board) subdivision to a cluster relative to Open Space and utility
requirements.
Members hearing this case were Messrs. Jackson, Freeman, McLellan, Stewart and Erikson.
Attorney James Stinson represented the applicant.
ZBA Minutes 03-1 1-08 _3 _
Mr. Jay Merchant was present as well as Mr. Paul Sweetser (Surveyor)
Mr. Stinson gave a brief overview of this project.
Conditions at this site are advantageous to a "cluster" development (power lines, road
construction and utilities). This eliminates the use of the power line easement on any on the
lots. The Cluster Bylaw does not allow count the land under the easement and we consider this
a hardship specific to this property. We are proposing 16 three-quarter acre lots within this plan
vs. the original. If we go to 60% open space we would have to cut the lots to 27,000 s.f. making
them much smaller than first proposed and smaller than represented in this application.
This represents good land use. Open Space would be 50% of the property. Planning Board
would like to place a Conservation Restriction on the Open Space portion.
We are requesting a Variance to allow the 50% Open Space inclusive of the area under the
power lines. Nothing will be built under the power lines. No roads would cross cut the
easement. If approved here the Planning Board would grant the Definitive Plan with the
Conservation Restriction.
DISCUSSION
^ Stewart-Is this Table correct? 50
• Stinson-yes
^ Stewart-the perimeter is counted as well as the easement.
^ Merchant-the locus is wrong, we have a corrected plan, Numbered 2006-04. (presented
to the Board)
^ Jackson-how much natural state compared with original plan.
^ Merchant-setbacks for clearing, cost of the road construction and dealing with NStar
makes this plan much more practical. It make more sense.
^ Jackson-I looks like you are leaving more natural space this way.
^ Merchant-about 13 acres.
^ Stinson-with the original there would be no control over the space this plan allows 13
acres subject to restriction under a Conservation Restriction
^ Stewart-Open Space goes from 60% to 46% plus 4% easement.
^ Freeman-where is the Tupolo Grove?
• Sweetser-past the easement.
^ McLellan-anything build under the easement?
^ Stinson-can be used as calculation for lots but not for Open Space
^ Sweetser-discussed with Planning Board at .49 acres rather than 3/4 acre lots
ZBA Minutes 03-I 1-08 _4 _
^ Stewart- does this go back to the Planning Board?
^ Merchant- approved Preliminary Plan but must go back for Definitive Plan if Variance
given here.
^ Freeman-Hardship seems to be created by yourself by too small total lot area, but
consider not something that could have been avoided with more planning.
^ Stinson-soil conditions are a hardship at the site, plus the easement
^ Merchant- we thought this was a good plan for the Town. In reference to the soil
conditions- smaller lots would be hard to perk (hard clay soil)
^ Freeman- what has NStar said of easement?
^ Merchant-all approved.
Open to Public Input
^ Elizabeth Taylor-Like to encourage cluster, more flexibility is needed within the Town.
This is a unique wildlife area, a major hunting ground for hawks and owls. It is
important with Conservation Restriction. I support this plan.
^ Steve Backus-I support this plan with Open Space area. The Smaller lots are good for
this development.
^ David Karan-Attribute to the Town to keep open for the wildlife. I support this plan.
^ Elizabeth Taylor-the easement is private property but the Conservation Restriction will
be written as public use.
Motion by Arthur Stewart to Close to Public Input. Second by Robert McLellan. VOTE: 5-0-0
FURTHER DISCUSSION
^ Freeman-considering the Variance
^ Jackson-unique types of soils and the existence of the power lines can be considered a
hardship
^ Stewart-easement has an impact as a hardship which is unique to this property.
^ Erikson-new plan is much better, I favor the cluster as a better use of the land.
^ Freeman- how do you feel about the hardship?
^ Stewart-clearly a preferential plan because of the easement and the soil characteristics.
^ Jackson-substantial hardship compared to the original plan.
^ McLellan- soil conditions may be a hang-up -pervasive to the area not just there.
^ Jackson-don't have any proof of soil conditions
^ Merchant- documentation from Richard Judd; he teaches classes at this site because it
is so unusual.
ZBA Minutes 03-1 1-08 _ 5 _
^ Jackson- concerns about electro magnetic effects of power lines; this moves homes
from that range.
^ Erikson-without cluster the developer could run into a situation that it could not go
forward at all.
^ Freeman-other criteria, anything regarding derogating from the intent or detriment to
public good?
^ Jackson-over all positive
^ McLellan- fine with me
Motion by Phillip Jackson to GRANT a Variance to case 08-06 to change a previously approved
(by the Planning Board) subdivision to; a) a cluster approach according to Plan #2006-04, dated
1-3-08 and b) such that the combination of Open Space and Power Line easement constitutes
approximately 50% open space. Second by Arthur Stewart. VOTE 5-0-0.
08-07 David Karam, 330 Main Street, Map 21 Lot 30-19. The applicant seeks a Variance
under MGL 40A-9 and Brewster Bylaw 179-25 to allow an existing hot tub and deck.
Members hearing this case were Messrs. Jackson, Freeman, McLellan, Stewart and Erikson.
Mr. Karam was present.
He was asked for a brief explanation of his application. The barn was originally within 50' for the
Conservation, then was moved back into the hillside. There is no place to sit outside with all the
Conservation restrictions regarding plantings. The property is just under 1 acre of upland even
though the total is over 3 acres.
Discussion
^ Freeman- hot tub and deck were constructed before the property was surveyed.
^ Jackson- was there a building permit issued for the deck and hot tub?
^ Karam-No
• Freeman-the house went through all permitting.
• Karam-Mr. Staley was aware of the deck, no occupancy permit has been issued until
approval of deck and hot tub in current lacation.
^ Freeman-the barn was torn down and rebuilt.
^ McLellan-are there any doors on the left side of the house?
^ Karam-No, that side is the kitchen and basement. Would rather go off the right corner
of the building but the bulkhead is there.
^ Jackson-Is the hot tub moveable or stationary?
ZBA Minutes 03-1 1-08 _ 6 _
^ Karam-it is wired and plumbed where it is. The exhaust for the laundry is up against
the house. Mosquitoes are a problem from the bog. It is a hardship that there is no
place to gather on 3 acres of land, not a lot of breathing space.
^ Erikson-need 25' setback and you have 20'
^ Karam-hot tub is considered a structure according to Mr. Staley and the Town
definition.
^ Stewart-you should have been aware of this if you had gotten deck permit.
^ McLellan-suggest you pull the deck back and place the hot tub on the deck.
^ Karam-asking the Town to consider all the Conservation restrictions put on the
property.
^ Freeman-would you be able to move the hot tub to the deck?
^ Karam-No-it would not be a deck but a platform for the tub. This has been there for
two years. No problem with the neighbor; originally stated no noise.
^ Freeman-could put a ground level patio and move the hot tub closer to the bulkhead.
Opportunity for outdoor existence, then you wouldn't need a permit at all.
^ Erikson-looking at picture- facing Lot 84, no one really sees this.
• McLellan-you could put flagstone down, around the hot tub, or a sidewalk around.
Open to Public Input
^ No one spoke to this application
Motion by Arthur Stewart to Close to Public Input. Second by Robert McLellan. VOTE: 5-0-0
Further Discussion
^ Erikson-only 4' in one corner; other modification doesn't make improvements.
^ McLellan-I would like to see suggested changes
^ Stewart- as for the criteria; soil conditions/shape-lot is impaired with wetlands and
topography, hardship-self imposed, neighbors have complained. I don't see meeting 1
and 3
^ ]ackson- deck Ok but hot tub (I don't know). Tough to prove.
^ Freeman-very difficult to approve. There must be another alternative that would not
need a permit. This doesn't meet the criteria
^ McLellan-I recommend withdrawal; take back to Victor
^ Karam-I would like to do that, need to clarify Table 2. note 6 (deck under 4' in height),
then if hot tub is considered a structure
ZBA Minutes 03-1 1-08 _ ~ _
^ Stewart-could move to the other side of the deck.
Motion made by Robert McLellan to allow the applicant (08-07 David Karam) to WITHDRAW
without prejudice. Second by Arthur Stewart. VOTE 4-1-0
Jackson YES
Freeman NO
McLellan YES
Stewart YES
Erikson YES
Motion made by Arthur Stewart to adjourn the Meeting. Second by Phillip Jackson. VOTE 5-0-0
Res tfully submitte ,
C ~~ C~
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9Z: u'.';l S L J~'dW s0.
ZBA Minutes 03-1 1-08 8