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Home My Public Portal AboutZoning Board of Appeals -- 2009-06-09 MinutesDate approved 7-14-09 Vote 7-0-1 TOWN OF BREWSTER ZONING BOARD OF APPEALS Meeting Minutes June 9, 2009 Chairman Philip Jackson called the meeting to order at 7:00 PM. Members present were; Philip Jackson, Arthur Stewart, Robert McLellan, Paul Kearney, Bruce MacGregor, Leslie Erikson, John Nixon and Patricia Eggers. Member missing: Brian Harrison Attending Audience Members: Sue Leven; Brewster Town Planner OLD BUSINESS Motion made by Arthur Stewart to ACCEPT the Minutes of April 8, 2009 as presented. Second made by John Nixon. VOTE 8-0-0. NEW BUSINESS 09-09 Merrimack Valley Holding Company Inc., 1399 Freemans Way, Map 45 Lot 70 or 70-1. CONTINUED from April 14, 2009. Represented by William Hoffman /Owners Representative. The applicant seeks an Appeal of the Zoning Agent's Decision and/or a Special Permit under MGL 40A 8+9 and Brewster Bylaw 179-49A (1) on property within the Industrial Zoning District and Water Quality Protection District to continue business with the existing uses on the site. Members hearing this case were Messrs. Jackson, Stewart, Nixon, Kearney and MacGregor. No one was present to represent the applicant. Motion by Arthur Stewart to UPHOLD the Zoning Agents decision to deny continuation of existing uses on the site (Map 45, Lot 70 and 70-1). Second by John Nixon. VOTE: 5-0-0. Motion by Arthur Stewart to WITHDRAW application for Special Permit. Second by John Nixon. VOTE: 5-0-0. 09-10 Club Dry Dock, Inc. 1439 Main Street, Map 24 Lot 1. Represented by Attorney Carl S. Back. The applicant seeks an Appeal of the Zoning Agent's Decision and/or a Variance under MGL 40A-8 and 15 and Brewster Bylaw 179-52 seeking exempt status as a religious sect or denomination or non-profit educational corporation. Members hearing this case were Messrs. Jackson, Stewart, Nixon, Kearney and MacGregor. Attorney Carl S. Back (Trustee of Club Dry Dock) represented the applicant Mr. James McCaffrey (Trustee) Mrs. Federessen ZBA Minutes 06-09-09 Mr. Back read an undated letter (original copy in file) to the Board re; °the Exemption of 1439 Main Street from Use Restrictions/Use Variance". This group has been in existence over 20 years and 10 years in the Town of Brewster. He also presented us with a copy of the Bylaws of Club Drydock, Inc. adopted 4/8/89 and amended 4/3/98. (No seal or signatures). Mr. Back referred to his letter of February 11, 2009. This is a legal conduit fora 12-step program. AA is deeply religious. It is anon-profit, educational organization with the use of premises similar as the Museum (they are the owners of the property). They have had a lease for the past two years. This is a 50 (C )3 non-profit organization to help others within the community. BOARD DISCUSSION Stewart-Was Club Dry Dock originally on Swamp Road? Jim McCaffery-yes, to provide space for AA meetings (occasionally ALLANON) No social events. Trustees sets up for legality of lease and insurance. We provide AA meetings only. No smoking allowed on the premises. • Stewart- how do the numbers compare to Swamp Road? • Back-Brewster has 29 meetings per week; 25 at Dry Dock. Maximum 50 people. No intention of other than 1 hour meetings (not past 9:30 PM). No music, no smoking. Plenty of parking. AA doesn't own any property (always done through an organization) • Nixon-Is Dry Dock involved in any educational process? Back-each group is autonomous-sets their own program. Dry Dock is a conduit. Organized meetings. Education is peer to peer. Tradition of AA-with a refined format. • Nixon-try to fit into exception to rules-non-profit, educational. • Back- under Article 2 in the Bylaws Nixon-does it have a permit with the Town? Jackson- does it meet legal requirements. Back- AA goes below the radar. Not engaged in public controversary. No case in Massachusetts- precedents in Connecticut, California, and New York. They regard it "as a religion". • Nixon- has anything with the lease mentioned subgroups? • McCaffery-involved for proper insurance coverage and to sign the lease. Guideline on AA are restrictive. Set up to voluntarily collect donation money to pay the lease, insurance, plowing, trash etc. Nixon-does the insurance policy mention a 12-step group? McCaffery- yes. Eggers- if 501 C Bwouldn't be accepted as a social club. Burden of proof-letter of determination for tax purposes. • Stewart-just AA for 20 years here. • McCaffery-primary process is AA; housekeeping issues. Stewart- one building only? • McCaffery- yes; the otd °gift shop". Open to Public Input Victor Staley- in general, I couldn't clearly determine exempted use. Not a tax expert. It has to be declared educational or a 2~d use Variance; either way the situation goes to limited review from Corridor Overlay change of use from gift shop to meeting space and DPRC meeting. If granted- several review processes. MacGregor-we can't zone by owner, we zone by use. 503C doesn't do anything- just allows lease. • Stewart-if you are education; exempt from our zoning. MacGregor-they could have anyone lease this space; but what happens there. • Stewart-40A-3 gives them exemption. ZBA Minutes 06-09-09 • Staley-agree it is the use; in this case address issue to the lease or coordinating organization. Motion by Paul Kearney to Close to Public Input. Second by John Nixon. VOTE: 5-0-0. BOARD CONCLUSIONS • Stewart- I am convinced it is non-profit educational, determined by the state. • MacGregor-agree with Art, agree to overturn Zoning Agent, find both educational and religious. Nixon- convinced- comes under MGL 40 Kearney-understand the relationship; in agreement • Jackson- great work being done there. Problem is what is allowed there and what isn't? Stewart to Staley-do you have a change of opinion? • Stacey- No, trust but verify. I have not read the tax law. Stewart-can you give us documentation that shows state exempt status? Tax exempt number? Back-have Bylaws and Article of Organization. We will provide Massachusetts Tax exempt Status documentation. Elizabeth Taylor- must come before Planning Board for Corridor Overly Protection. Motion by Arthur Stewart to OVERTURN Zoning Agent decision based on documentation that has been presented that they qualify as anon-profit, educational institution under MGL 40-3. Second by Paul Kearney. VOT: 5-0-0. Motion by Arthur Stewart to accept the applicants request to WITHDRAW Variance application. Second by John Nixon. VOTE 5-0-0. 09-11 Jamie McGrath, 51 Zona Drive, Map 37 Lot 15-13. The applicant seeks a Variance under MGL 40A and Brewster Bylaw 179-52 to seek relief from side setback. Members hearing this case were Messrs. Nixon, Erikson, Kearney, MacGregor and Ms. Eggers. Mr. Jamie McGrath was present at hearing. Mr. McGrath is the current owner of the property. He did not get a certified plot plan when he purchased the land. The building was started but never completed. It was built on a foundation without inspection. After purchasing the property he considered tearing it down or bringing it up to code. After inspection it was determined the frame was good but adjustments were needed to the foundation, anchors and wind regulations had to be met. At that time they discovered a slight setback issue with the southwest corner into encroachment of 1.5 inch. Justification for Variance; 1) Shape or Topography; 60,000 s.f.- narrow, 125' is fairly narrow (side to side) 2) Hardship- unfinished Financially hard to tear down and start over Building "bones" in good shape 3) Detriment to public good- no prior complaint to setback, wooded area-non visual 4) Square footage (9-10 square inches into setback, minor/non substantial). BOARD QUESTIONS • Kearney-incredibly small amount for Variance Nixon-the lot has been cleared. Is the intent to be a commercial venture? McGrath- No, house plans are underway Nixon-are you going forward for building permit soon? ZBA Minutes 06-09-09 McGrath-within a year Nixon- it is an eyesore there McGrath- intent to rebuild what is there and build a home within a year. Bring barn to current codes. Erikson-what is use of barn? McGrath- guest room upstairs, plumb 2"d floor for bedroom/office. Erikson-are we granting for barn or apartment? McGrath-no kitchen maybe recreational use/storage downstairs. .7ackson-determination will arise when applying for building permit. MacGregor- 2 previous letters from the Building Department- is this the same building? Open to Public Input Mr. Perkins-it is gross looking from the outside. No problem to improve the property. Concern with what the building will be in total when done. Would like to feel comfortable with ~~shed". McGrath-overall process to do both barn and house together, bring up to code, apply for both at the same time, clean-up the property. Elizabeth Taylor (Planning Board)- how big is this building? McGrath- 24 x 30 feet Victor Staley (Zoning Agent)- sheds are all sizes and shapes; this is an accessory building, 24 x 30. McGrath-minor setback involvement, less than 1 square foot, de minimus. Motion by Pat Eggers to Close to Public Input. Second by Paul Kearney. VOTE: 5-0-0. BOARD DISCUSSION Erikson-no issues in nature de minimis. Nixon-ultimate use of structure-possible office-intent to move business there. McGrath-2 offices now, keep workers busy off season. Hope to resell in the future. Kearney-doesn't meet first criteria but for a foot, I am OK. MacGregor-best foot forward, go for it. Eggers- a much better use; in favor Motion made by John Nixon to GRANT a Variance to Jamie McGrath under the following conditions; diminutive encroachment into setback thus to be allowed to rebuild the structure as applied. Second by Patricia Eggers. VOTE; 5-0-0 8:30 PM Motion by Patricia Eggers to adjourn meeting. Paul Kearney seconded. VOTE: 8-0-0 Respectfully ... Marilyn Mooers, Cle k ZBA Minutes 06-09-09 Date approved 7-14-09 Vote 7-0-1 TOWN OF BREWSTER ZONING BOARD OF APPEALS EXECUTIVE SESSION Meeting Minutes June 9, 2009 Chairman Philip Jackson called the meeting to order at 6:30 PM. Members present were; Philip Jackson, Arthur Stewart, Robert McLellan, Paul Kearney, John Nixon ,Leslie Erikson, and Patricia Eggers. Member missing: Brian Harrison, Attending Audience Members: Sue Leven; Brewster Town Planner Mr. Jamie Veara; Town Counsel Ms. Sharon Marchbanks; Town Counsel Mr. Viera requested this Executive Session to keep the Board informed of the Ruth Mohr appeal. Previous proceedings; • Mr. Frank Stroh sought a building permit. • Mrs. Mohr appealed the ZBA decision to uphold the ZA decision; no road frontage. Zoning Agent ruled frontage on Rulah Road • Board upheld building permit but placed frontage on Frank D. Lawrence Road Ms. Mohr challenged that decision • Land Court sent it back to The Board for more information and findings on FDLawrence decision • ZBA/Town Counsel presented why FDL was suitable. Trial scheduled for late July Mr. Stroh (the permit holder) must defend his permit. Not the Town's function to defend him. Mr. Stroh must submit information as to why he has a right to this permit. This will be a new trial with newly presented evidence. Two schools of thought; 1) person presents at least as much as when they came before the ZBA or 2) doesn't matter what was heard before-now new evidence. Mr. Stroh was of the opinion the Town was going to present the evidence. The permit holder presents their own case. The information presented by the Boards decision is legally sound. Procedurally done correctly. Mr. Stroh may not even appear. If not, the court will accept 13 agreed upon evidence submissions. The burden is on Mr. Stroh. Mr. Stroh may not take the appropriate steps to defend his position indicating the person who got the permit did not take appropriate actions to protect the permit. Ms. Mohr evidence; deeds, plans, experts may testify. No member of the Board will testify. The Zoning Agent could be called. Sue Leven (Town Planner) could be used as a witness designate. ZBA Minutes 06-09-09 Executive Session 1 If the petition is denied the Town may choose to defend it. Town attorney is not responsible for making Mr. Stroh's case. QUESTIONS FROM THE BOARD • Stewart- Mr. Stroh indicated or implied he had no more funds. • Nixon- several buildings have been started there but never completed. Veara-proceed at their own risk • Stewart-set precedent as a buildable lot? • Viera-if the judge decides; could be risk of unbuildable. Marchbanks-Land Court determined Frank D. Lawrence Road; paperwork is before them. • Veara-Decision of Frank D. Lawrence Road entirely appropriate. • MacGregor-Is the Town paying to fight this? Veara-only as a named party, not to defend Mr. Stroh. Discussion RE: Devito Appeal Mr. Veara noted that the Town has asked them to take a move active role in the Devito appeal. It is the applicants burden to handle this case. The Historical Society is an independent Corporation from the Town but interrelated to the Town. They travel the same roadway as all activities in the area. They are appealing based on impact by traffic. They have the right to move and finish the building but at their own risk. The error of not naming the Historical Society as been fixed. May be quite a long timeline. Motion by Arthur Stewart to Close Executive Session Second by Paul Kearney VOTE: 9-0-0 Respectfully submitted, arilyn Mooers, erk ~~~ ~~~~ ~f ~, ~. ZBA Minutes 06-09-09 Executive Session 2