HomeMy Public PortalAboutZoning Board of Appeals -- 2008-05-13 MinutesDate approved 06-10-08
Vote 6-0-1
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
May 13, 2008
Vice-Chairman Phillip Jackson called the meeting to order at 7:00 PM. Members present were; Arthur Stewart, Robert
McLellan, Leslie Erikson, Paul Kearney, John Nixon and Bruce MacGregor.
Members missing; Brian Harrison
OLD BUSINESS
^ Motion made by Arthur Stewart to accept the Minutes of March l1, 2008 as presented. Second made by
Robert McLellan. VOTE 7-0-0.
^ Motion made by John Nixon to accept the Minutes of April 8, 2008 as presented. Second made by Paul
Kearney. VOTE 7-0-0.
NEW BUSINESS
08-11 Town of Brewster, Recreation Department, 2298 Main Street, Map 16 Lot 80-1. The applicant
seeks a Variance under MGL 40A-9 and Brewster Bylaw 179-20 (D) to erect a sign at the driveway entrance to The
Eddy School. CONTINUED until 7uly 8,2008
08-13 Cape Cod Museum of Natural History, 869 Main Street, Map 20 Lot 6. The applicant seeks a
Variance under MGL 40A-9 and Brewster Bylaw 179-19 and 20.5E (5) to erect a sign advertising Museum events.
No one in attendance to present this application. We will continue on and take this if they appear.
08-14 Larry Ballantine, 218-224 Paines Creek Road, Map 22 Lot 56-1. The applicant seeks a Variance
and/or Appeal of Zoning Agent Decision under MGL 40A-9 and Brewster Bylaw 179-25-B Article V, Table 2, Note 12 to
change property to condominium form of ownership.
Members hearing this case were Messrs. MacGregor, Kearney, Nixon, McLellan and Stewart
Attorney John McCormick represented the applicant.
Also present were Larry Ballantine, owner and Paul Shanahan, builder.
Mr. McCormick gave a brief overview of this application.
This properly has been seen several times recently by the Board of Appeals for improvements. There are 3 buildings
on the property; a duplex and 2 additional units. The owner/applicant is seeking approval to change to condominium
style of ownership. There will be no changes to the site plan. The Board was presented with a parking plan (2 per
unit) and a sample condo document that will be reworked for this property with specific items to be addressed.
This property has been used residentially and will to continue to be residential. The only change is this type of
ownership. The properties have been used on a year round basis and this is the third time this year before us; why
didn't this come forth as one?
As a history of prior use; Mr. Ellis (previous owner) used them as year round rentals. Prior to Mr. Ellis, Mr. James
Contonio (1981-2003) rented the units on a year round basis. No change of use, just change of type of ownership.
LETTERS
ZBA Minutes OS-13-08
^ Ellen Mushinski (Map 22 Lot 57-4); "this change may have a negative impact on the residential character of
the road and also may run counter to the efforts the town has made to improve the area with the purchase
of parcels of land that had been sites for a trailer park and an old motel. I also fear that this change could
impact the value of land in the area. Would these small condominiums become weekly or monthly rentals?"
BOARD DISCUSSION
^ Kearney-are all to be sold?
^ Ballantine-yes
^ Stewart-this is the third time this year, why didn't this come forth as one?
^ Ballantine-not planned, it just developed
^ Stewart-this evidence presented tonight shows year round units. I thought they were seasonal. Are we
talking about all units?
^ Ballantine-they were year round when purchased. The previous owner lived in one unit. All have been
lived in year round.
^ MacGregor-if one septic fails, they would all pay.
^ McCormick-special provisions can be established if one is over taxed in use.
^ MacGregor-this is very small, with no manager and rules and regulations. This size may be an issue.
^ Ballantine-similar to one I did in Harwichport. Easy to deal with. We did hire an accountant.
^ Shanahan- 2 buildings have their own septic, duplex is shared.
^ MacGregor- if there is a septic problem, all share the cost of repair. One person has been responsible up
until now. Not big enough for professional management.
^ Ballantine- each owner would be more responsible.
^ McLellan- when set Condo Bylaws; not make all responsible for all.
^ MacGregor- normal condo is not like that
^ Ballantine- can have flexibility- exclusive use areas.
• Nixon- application; Variance or Appeal ZA decision
^ McCormick- Prefer an Appeal of ZA- example of Cranberry Cove case, appealed to Land Court. Agreement
with Town Counsel if proof of year round residency- cannot regulate ownership, just use. There is no change
of use. Zoning Bylaw cannot regulate change in ownership. The lot size is the threshold to come to Zoning
Board; clear no change of use. Both applications are in the packet.
^ MacGregor- when remand was sent back, why wouldn't that count as an overturn decision.
^ McCormick- pre-trial conference with Brewster Town Counsel agreed on the remand-proof of year round
use.
ZBA Minutes OS-13-08 - 2 -
^ Jackson- Note 12 could be more specific
^ McCormick- Note 12 is unclear according to Victor Staley. Make sure not change of use, not intention of
litigation.
Open to Public Input
Jim Foley- attending at the request of an abutter, several questions;
4 unit or 3? 3 Buildings, 4 units
Any other buildings? No
What type of septic is on property?
Distance from septic to wetlands?
What is approximate market value? $240,000 to 320,000
Reference to towns effort to clean up the area; is it in the best interest of the neighborhood?
Sell units or rented? Low end units are against what the neighborhood has developed into.
Creates an issue hard to justify in this neighborhood.
McCormick-the way they are used now-rented on a year round basis, nothing to change. Now rented without
restrictions. This will be owners as opposed to tenants; more assurance of up keep. Don't think there should be
a concern of the value of the property.
Department Reviews
Conservation- not within 100' setback of the wetland
HDC-ok
Town Administration-read letter as to 406
MacGregor-in a condo there are specific rules and regulations; I don't think there should be short term rentals.
McCormick-no difference from any homeowner; may rent for several weeks during the summer.
MacGregor-these could be put in documents; seasonal or annual.
McCormick- happy to work with the Board, no intent to rent on a daily basis, may agree on weekly-if not
acceptable "no less than a month".
Motion by Arthur Stewart to Close to Public Input. Second by Paul Kearney. VOTE: 5-0-0.
DISCUSSION
^ Stewart- my interpretation of Note 12; the applicant sells and owners do what they please for rentals.
This would be a change of use, thus uphold Zoning Agent and look at Variance.
^ McCormack- happy to put in stipulation for rentals. Minimum of month would be restricted in the
documents (may be a problem)
• Jackson- do you have a change in mind?
^ Stewart-not to change the use, it must be yearly.
^ McLellan-if we had been told up front that this was the plan, the previous decisions might have been
different.
^ Ballantine- the Zoning Agent was told.
ZBA Minutes OS-13-08 _3 _
^ MacGregor- I agree with Art, testimony that these were used long term, why change. Otherwise not in
favor; one owner watching the property not the same as this new situation.
^ Nixon-the question from Jillian Douglass regarding losing 4 rental units. Not in favor with question pf
condo stipulations or allowing Condos period. Regular rental situation-taking 4 units off the Brewster
stock. Not in favor of either overturn or a Variance.
^ Kearney-concern of control - "trust" has limited leverage. One owner could drive it down.
^ McCormack-issue is change of use. We agree to limit to annual rental basis or owner occupied.
^ Jackson-does that change your thinking?
^ Stewart- we learned from Cranberry Cove-no change of use- just change of ownership. If a Variance, it
does not meet the criteria.
• McLellan-not in favor
^ MacGregor-in favor, with that compromise. Would be nicer if individual owned as long as not a
revolving door. We cannot legislate ownership-year round tenants helps my decision.
^ Nixon- don't like this but no other alternative as long as stipulated: owner occupied or annual rental.
Variance would have failed.
^ Kearney-agree, we cannot deny
^ Stewart-if vote in favor; definition as to what belongs to whom- sheds, decks etc.
^ Stewart- density is tight
^ Ballantine-this template is restrictive.
^ Jackson-2 parts of this application; overturn Zoning Agent or Variance.
^ Stewart-was the Zoning Agent aware of the Cranberry Cove decision?
^ Shanahan-Cranberry Cove did not have 60,000 s.f.
^ MacGregor-can we overturn a Zoning Agent decision with restrictions?
^ McCormack- overturn can not attach conditions but if no change in use; owner occupied or annual
rental.
^ Stewart-we should see the full condominium documents before approval
^ McCormack-if doing Condo Docs we have to have engineered plans and all divided out with common
areas and voting rights
^ Ballantine-unable to do engineering plans until walls/sheetrock are in place. (100% done before
"certified plans'.
^ Nixon-we must make sure we don't overstep like Cranberry Cove. What is proposed is correct, we could
do a "good faith" approval but wait for condo docs set for review.
ZBA Minutes OS-13-08 _4 _
• Kearney-when do you want to put these on the market?
^ Ballantine-soon, if we wait 2 months we lose the summer season
^ Stewart-past condo we have reviewed documents before decision.
^ 7ackson-sense of the Board- more comfortable with the Condo Documents complete.
^ Kearney-perhaps a Continuance for a month.
^ McCormack-if not possible to have documents ready by June I will contact the Zoning office.
Motion by Arthur Stewart to CONTINUE 0814 until June q0, 2008. Second by John Nixon. VOTE: 5-0-0.
08-13 Cape Cod Museum of Natural History, 869 Main Street, Map 20 Lot 6. The applicant seeks a
Variance under MGL 40A-9 and Brewster Bylaw 179-19 and 20.5E (5) to erect a sign advertising Museum events.
Members hearing this case were Messrs. Kearney, Nixon, McLellan, Erikson and Jackson.
Attorney Myer Singer and Mr Roy Smith; both Trustees of the Cape Cod Museum of Natural History presented this
application.
Mr. Singer gave a brief overview; the Museum has always used building signs to notice exhibits. They are usually
before and during the exhibit. Similar to what has been there in the past. They did comply with the Bylaw when put
up. The sign code has always had a "community event" restriction but it has changed 3 times in 3 years. Prior to
2006 was no greater that 12 s.f. Town Meeting 2006 increased to no greater than 100 s.f. In Town Meeting 2007
changed to 20 s.f.
Most of our banner signs are 35-50 s.f. each. The building is set back from the road and is hard to see.
These banners are OK with Historic Commission if they meet the approval of ZBA. Hope the sign code will go to
Planning Board for complete revision.
Variance Justification;
^ Variance criteria lists "affected structure" and the Museum is unique as to the location of the building in
relation to the street.
^ Hardship-trying to get the message out
^ Not detrimental to the public good
We suggest allow up to 100 s.f. through the summer season of calendar year 2009 or "whatever is acceptable", if
Bylaw is to be revisited.
QUESTIONS
^ Smith-we have to go to Historic each time
^ Nixon-How long are the signs up for?
^ Singer- under temporary signs, 3-4 months
^ Stewart-the code went from 12 to 100 to 20.
Open to Public Input
Department Reviews
^ Conservation-building is outside the 100' line
^ Planning Board-in favor of the banner signs
ZBA Minutes OS-13-08 _5 _
Motion by Paul Kearney to Close to Public Input. Second by Jack Nixon. VOTE: 5-0-0
DISCUSSION
^ Erikson- due to the confusion of the code changes, I think we should grant the Variance through 2009.
^ Kearney- appropriate, concern about time, prefer through 2009
^ Nixon-confusion as such, meets condition for granting a Variance
^ McLellan- agree
^ Jackson-I feel the same.
Motion by Paul Kearney to Grant the Variance of 08-13 to erect 2 banner signs not to exceed 100 square feet through
the 2009 summer season. Second by Robert McLellan. VOTE: 5-0-0.
Motion to adjourn made by Arthur Stewart. Second by John Nixon. VOTE: 6-0-0
submitted,
~ ~ Mari~ly
ZBA Minutes OS-13-08 _6