HomeMy Public PortalAboutZoning Board of Appeals -- 2008-11-13 MinutesDate approved 12-09-08
Vote 8-0-0
TOWN OF BREWSTER
ZONING BOARD OF APPEALS
Meeting Minutes
November 13, 2008
Chairman Philip Jackson called the meeting to order at 7:00 PM. Members present were; Philip
Jackson, Arthur Stewart, Robert McLellan, Paul Kearney, Patricia Eggers, Bruce MacGregor, Brian
Harrison, Leslie Erikson and John Nixon.
OLD BUSINESS
• Motion made by Patricia Eggers to ACCEPT the Minutes of October 14, 2008 as
presented. Second made by Paul Kearney. VOTE 9-0-0.
NEW BUSINESS
08-30 Paul and Anne Tausek, 25 Breakwater Road, Map 17 Lot 29. The applicant seeks
a Special Permit under MGL 40A-9 and Brewster Bylaw 179-25-B to alter and extend a pre-
existing non-conforming structure.
Members hearing this case were Messrs. MacGregor, Harrison, Nixon, Kearney and McLellan.
Mr. Bruce Dinwiddie, contractor, represented the applicant.
Mr. Dinwiddie was asked for a brief overview of this project.
The house was built prior to 1960, making it pre-existing, non-conforming. As such there were
no zoning regulations and the house was built too close to the property line and ~~backwards" to
the lot. Setbacks to road are very close. Esthetically this is much better.
BOARD QUESTIONS
• )ackson-have you talked to the adjacent B+ B about these plans?
• Dinwiddie-they all get along as neighbors.
• MacGregor-is this a 2"d floor deck?
• Dinwiddie-pitched roof with a railing, redesigned for the Building Inspector.
• Harrison-have you considered stepping it in?
• Dinwiddie-we have chopped 9 feet off the porch.
• Harrison-maintaining the 13.3-no further encroachment.
• Dinwiddie- anything is workable-trying to go for the maximum.
• Harrison-worried about intensifying the encroachment.
• Dinwiddie-setback further before angling.
• MacGregor-this is a porch not a deck, dimensions on the plot plan are what you would
build to? Roof is out further than the building.
• Dinwiddie-deck is 9 feet out all around. Roof line carries through the back.
• MacGregor-on the plot plan; existing dwelling, added proposed porch- 13.6 from
Breakwater Road.
• Dinwiddie-setbacks based on foundation.
• MacGregor-working off foundation
• Dinwiddie-roof line over the deck for the look
• McLellan-no new construction can go further than foundation as is.
• 7ackson-Brian, do you wish to pursue no added intensity?
ZBA Minutes 11-13-08 1
• Harrison-maintain 15.3-not intensifying, more volume but not more intensity.
Open to Public Input
• No one spoke to the issue
Motion by Brian Harrison to Close to Public Input. Second by Robert McLellan. VOTE: 5-0-0.
FURTHER DISCUSSION
• MacGregor-I agree with Brian's point-if in a foot or so-would look strange. No strong
feeling.
• McLellan-problem with 13.6, but can live with it.
• Kearney- no problem; to modify would look strange.
• Nixon-no real problems-especially with windows.
• 7ackson-ConsCom approved project, no other comments.
• MacGregor-should condition upon corrected copy of plans.
Motion made by Robert McLellan to GRANT a Special Permit for 25 Breakwater Road, Map 17
Lot 29, under MGL 40A-9 and Brewster Bylaw 179-25-B to alter and extend apre-existing non-
conforming structure subject to receiving corrected plan.
Second by Paul Kearney
VOTE: 5-0-0.
08-31 Donald B. Baker III, Proprietors Cartway, Map 34 Lot 86. The applicant seeks an
Appeal of the Zoning Agents decision under MGL 40A-8, section 15 and Brewster Bylaw to seek
determination of build ability of lot.
Members hearing this case were Messrs. MacGregor, Harrison, Nixon, Stewart and Erikson.
Attorney John McCormick represented the applicant.
Donald Baker was present for the property owner.
Attorney McCormick gave a brief overview of the application.
They were before the Zoning Board of Appeals for a determination of buildability. A letter from
Victor Staley, Building Commissioner, dated November 6 stated he could not make that
determination. The applicant should come before the ZBA. Followed by a letter of determination
dated November 13, 2008.
Proprietor's Carlway (renamed on 2007) meanders behind the Police Station. Baker property
abuts to the East. In 2006 the ZBA made determination to OK one lot (pre-dated zoning). This
fits in the parameters-separate independent lot. There is 100' frontage on 2.7 acres. The
roadway immediate to West (Romme) has been approved, immediate to East (Baker) has been
approved. Road has been recognized, approved for access. Technically we are appealing the
Zoning Agents decision but we believe it meets criteria.
BOARD QUESTIONS
• Jackson-86 and 86-1 are one lot?
• Baker-deeded as one lot
• McCormick-history; rail trail goes across
• Stewart-assume you are going to build on 86 not 86-1. Access to Proprietor's via 124?
• Baker- depends upon where you are going, head south over Gull's Way, comes out at
Bike Path parking lot.
• McCormick-Romme property now approved to 124.
• Erikson-road in tough shape out to 124
• Baker-needs upgrade, Romme will upgrade and maintain to Fire Department standards.
ZBA Minutes 11-13-08
• Erikson-There is no sign indicating Gull's Way at parking lot?
• Baker-do not know
• McCormick-generally living on a private way, own to the center line of the way.
• Nixon-map in the packet; lot dimensions not clear. We need a proper plot plan.
• ]ackson-Victor Staley feels that the way the Bylaw is written he is not comfortable
making this decision; that is why it was sent to the ZBA.
• Harrison-has a building permit been requested? Must have a permit to make a
determination. We can only make an opinion, not binding.
• McCormick- confident in an opinion- it was noticed and commented on by departments.
• Harrison- how can it be binding?
• McCormick- Mr. Staley feels he cannot make the decision. He has declined. Fora 40A
that's the procedure; zoning agent, zoning board of appeals, other than building a house,
may be for selling the lot. Must know zoning determination.
• Harrison-an advisory opinion
• MacGregor- when you came before, had you submitted building plans?
• Baker-no
• Stewart-the o6 case was the same, granted the appeal.
• Harrison-falls into Victor's "court"
• Stewart- he hasn't said no. He is asking if a buildable lot (overturn Zoning Agent)
• McCormick- 2006 case could be viewed as a advisory opinion. Same type as tonight-
understand limitations. Can be styled like 2006 decision.
Open to Public Input
• Robert Clark-if declared buildable, is this forever?
• Peter Fetig-why is it a question of buildability?
• Jackson-zoning has changed over the years; road access, Lots 49 + 46 granted to build
thus meet requirements of frontage.
Motion by Brian Harrison to Close to Public Input.
John Nixon seconded.
VOTE: 5-0-0
FURTHER DISCUSSION
• Jackson-letter of 11-12-08 from abutters read into hearing (in file)
• Jackson-sense is probably buildable but Victor Staley has not made an opinion.
• Stewart-letter from Zoning Agent dated 1i-6-08 was read into hearing (in file).
• Jackson=`a good case", not authority to make determination.
• McCormick-you make that determination; advisory or such.
• Erikson-if approved as a buildable lot, still the building permit process. Ok with that.
• MacGregor-Ok with this, same as last time
• Stewart-based on 06 case; same tact as they took. Lot in excess of 15,000 s.f.
• Nixon- no scale on the map. Conditions meet 179.26. Letter regarding Gull's Way
indicate conditions
• Erikson-crossing the bike trail should be noted with a stop sign as a warning.
• Baker-actually there is a stop sign back about 50 feet.
• Jackson-Fire Department requirements for access are to be met.
• Baker-comes with Certificate of Occupancy.
• MacGregor-Gull's Way- is there some way to condition the upkeep?
• Baker-I will be adding to the fund that maintains the road.
• McCormick-as part of the packet; deed from property, contains 2 acres approximately
• Baker-bounds on the corner f 200'
• Nixon-is there an "as built" plan? Would like to see a surveyor's map of lot.
ZBA Minutes 11-13-08
• McCormick-deed, tax map, antidotal evidence. Ultimately, when building permit
requested, final asking for decision with this information.
• Harrison-40A-6 or Brewster Bylaw or both is a frontage issue.
• MacGregor-deeds mean nothing for area, tax maps either; probably fine but could be
suspect-survey is the only way.
• Nixon-would like to see lot surveyed.
• Harrison-I am not against this but it should be ~~in the Boards opinion". Pre-existing
frontage °Victor Staley has the right to apply 40A-6".
• MacGregor-°best of our ability because of these things"-chain of title is verified but
nothing to verify frontage. I could vote for it if dimensioned.
• Stewart-prior to 1960=5000 s.f./50' frontage, after 1960 40A-6
• Jackson-continue for survey or approve with condition.
• Erikson- motion with provision for access to property.
• Stewart-how to enforce that?
• Nixon-when final request for Building Permit Fire Department gets involved.
Motion by Brian Harrison: In the Board's opinion (08-31, Map 34 Lot 86), the lot has adequate
area and frontage to qualify for the grandfathering provisions under M.G.L. c. 40A §6, ¶4. The
Board further notes that the buildability of the lot is contingent upon the lot having been in single
ownership at the time it became nonconforming and the Board further notes that the access to
the lot will need to meet Brewster Fire Dept. access standards.
The Board also stated that the Building Commissioner has the right to make a determination
about buildability under 40A-6.
The Board requires that a survey plan done by a Massachusetts Registered Engineer or Land
Surveyor be submitted to the Board.
John Nixon seconded motion.
VOTE: 5-0-0
08-32 Robert Schmalz, 334 Stony Brook Road, Map 21 Lot 73-1. The applicant seeks a
Variance under MGL 40A-9 and Brewster Bylaw 179-52 and 2B to construct a 24 x 22 foot shed
(accessory building).
Members hearing this case were Messrs. Harrison, Erikson, Kearney, McLellan and Ms. Eggers.
Mr. Jamie McGrath of Pine Harbor Wood Products represented the applicant.
Mr. McGrath was asked to explain this project. He is requesting a Variance for the easterly
property line to build a 24 x 22 foot accessory building to store the homeowner's several Jeeps.
This would be considered a garage in many areas, trying to minimize the disturbance.
Site plan from driveway was closer than he had been told.
BOARD QUESTIONS
• Jackson-letter from Victor Staley dated 11-13-08, 25' does pertain because created in
1977.
• Kearney-what determined size?
• McGrath-smaller than 25' not large enough for needs. Bolder on right corner, large oak
tree
• Jackson-how about a different spot on the property?
ZBA Minutes ] 1-13-08
• McGrath-option is the middle of the back yard, then the driveway through the property.
• McLellan-I agree with the location
• Eggers-was there any lot 2 driveway? Was there a letter from Mr. Bridgewood?
• McGrath- no, they are friends.
• McLellan-foundation of the building 3 feet, or grade to the building.
• Erikson-no issues with this, setbacks about a driveway.
• Harrison-tough standard, large lot, nothing unique.
• Kearney-as a Variance must meet conditions, is it unique?
Open to Public Input
• ]im Holland-no problems with this application
Motion to Close to Public Input by Patricia Eggers. Brian Harrison seconded. VOTE: 5-0-0
FURTHER DISCUSSION
• Harrison-have a hard time with topography, there are other places on the lot.
• McGrath-there are other places but this is the right spot.
• Kearney-problem is all 4 conditions must be met.
• Eggers-I think there is hardship, balance criteria-keep in spirit of the law. Unique
topography of that particular lot.
• Kearney- not sure meet all 4 criteria for Variance
• McLellan-no problem-meets all 4 criteria, good job locating shed.
• Erickson-OK with this.
• Eggers-can it be approved under Special Permit.
• ]ackson-can request a Continuance or Withdrawal.
• McGrath-would like a vote
Motion made by Leslie Erikson to GRANT a Variance under MGL 40A-9 and Brewster Bylaw 179-
52 and 26 to construct a 24 x 22 foot shed (accessory building). Patricia Eggers seconded.
VOTE: 3-2-0... DENY
Eggers YES
Erikson YES
McLellan YES
Kearney NO
Harrison NO
Any other business to come before the Board.
Planning Board has revised their permitting fees, held a public meeting and approved revisions.
ZBA will discuss revisions of fees next meeting.
Motion by Patricia Eggers to adjourn meeting.
Brian Harrison seconded.
VOTE: 8-0-0
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ZBA Minutes 11-13-08